https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5259

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KWALE** **ELC CASE NO. 249 OF 2021** ***(FORMERLY MOMBASA ELC NO. 392 OF 2016)*** **HESBON TSUMA MALACHU………..…………..…….……1ST PLAINTIFF** **JOSEPHINE NGONYO……………………………………..…2ND PLAINTIFF** * **VERSUS -** **NAHUM MUTALI OKWIYA………………...…………………..DEFENDANT** **JUDGMENT** 1. **Preliminaries** 2. The Judgement by this Honourable Court pertains to the civil case instituted by *Hesbon Tsuma Malachu* and *Josephine Ngonyo*, the Plaintiffs herein. It was against *Nahum Mutali Okwiya*, the Defendant herein, by way of a Plaint dated 9th December, 2016. The suit is premised under the provisions of Sections 24, 25, 26 and 80 of the Land Registration Act, No. 3 of 2012; Sections 13 and 150 of the Land Act, 2012; Section 17 of the Limitation of Actions Act, Cap 22; Section 173(1) of the Evidence Act, Cap. 80 Laws of Kenya; and all other enabling provisions of the law. The Plaintiffs seek recovery and declaration of ownership of land parcel known as Kwale/Mkongani “A”/909, alleged to have been unlawfully claimed by the Defendant despite their long and uninterrupted occupation. 3. Upon service, the Defendant opposed the claim. He filed a Statement of Defence and Counter - Claim dated 15th May, 2017, amended on 2nd June, 2017, later re‑amended on 24th January 2024, denying the Plaintiffs’ ownership and asserting co‑registration of the suit property together with his late father, Gideon Morell Okwiya. The Defendant alleged trespass and sought mandatory injunctions, demolition of structures, damages for loss of use, or alternatively sale/lease of the land to the Plaintiffs. 4. Subsequently, the Plaintiffs filed Replies to Defence and Counter - Claim dated 14th November 2022 and 26th February, 2024, traversing the Defendant’s assertions and maintaining that their rights had crystallized by effluxion of time under the Limitation of Actions Act. The matter therefore proceeded to hearing, supported by oral testimonies and documentary evidence including sale agreements, receipts, adjudication records, and land registry searches. 5. **The Description of the Parties** 6. The 1st Plaintiff, Hesbon Tsuma Malachu, is an adult male of sound mind residing in Burani within Kwale County, in the Republic of Kenya. He sued in his personal capacity together with the 2nd Plaintiff, having lawfully purchased and taken possession of Land Parcel Kwale/Mkongani “A”/909. He brought this suit to safeguard his proprietary rights over the said parcel, which he alleged had been unlawfully claimed by the Defendant. His locus standi was anchored in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which vest him with the right to institute proceedings for recovery and protection of property acquired and occupied for over two decades. 7. The 2nd Plaintiff, Josephine Ngonyo, is an adult female of sound mind residing in Burani within Kwale County, in the Republic of Kenya. She was the wife of the 1st Plaintiff and a teacher by profession. She sued jointly with the 1st Plaintiff, having witnessed and participated in the purchase of the suit property from the late Mathias Ibrahim Mlamba on 18th December, 2002. She had since lived on the land, established a permanent home, and contributed to the development of a church and a primary school thereon. Her claim is similarly grounded in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which recognize her proprietary interest and occupation. 8. The Defendant, Nahum Mutali Okwiya, is an adult male of sound mind residing in Kwale County, in the Republic of Kenya. He was sued as the person who, together with his late father Gideon Morell Okwiya, was registered as co‑proprietor of the suit property on 29th August, 2005. The Plaintiffs impugn his registration on the basis that the root of his title was tainted with irregularity and that his rights, if any, have since been extinguished by effluxion of time under Section 17 of the Limitation of Actions Act, Cap 22. He was therefore sued in his personal capacity as the party currently asserting ownership and seeking to evict the Plaintiffs from the suit property 9. **Court Directions before Hearing** 10. Upon perusal of the Plaint dated 9th December, 2016, together with the accompanying list of documents and witness statements filed by the Plaintiffs, this Honourable Court directed that the matter be set down for compliance with Order 11 of the Civil Procedure Rules, 2010. 11. On 17th February, 2025, having confirmed that both the Plaintiffs and the Defendant had complied with the pre‑trial directions under Order 11, the Court fixed the matter for full hearing by way of adducing viva voce evidence on 9th July, 2025. The Plaintiffs’ case was heard on 9th July, 2025 after which they marked their case closed and thereafter on 13th October, 2025, the Defendant called his witness and marked his case closed. 12. **The Plaintiff’s Case** 13. From the pleadings before Court, the Plaintiffs bought a piece of Land being plot No. KWALE/MKONGANI “A”/909 from one deceased Mathias Ibrahim Mlamba who had bought the same from the Defendant’s father by the name George Okwiya also deceased. George Okwiya sold to Mathias Ibrahim Mlamba and did not procure tittle deed which later Mathias Ibrahim Mlamba sold it to the Plaintiffs still without title and agreement in writing of the said sale. After completion of purchase, the Plaintiffs started development (built a School) as well as procuring the title deed. It was very difficult since the Defendant emerged and claimed that the land was his and that the Plaintiffs should vacate. 14. On time the 2nd Plaintiff received a threatening message from the Defendant over her mobile phone. Despite numerous talk and production of sale agreement, the Defendant had persisted to threaten the Plaintiffs to vacate. The Defendant action was unlawful, vexatious and unwarranted aimed at depriving the Plaintiffs their rightful enjoyment of their land. Despite demand and notice of intention to sue being issued, the Defendants have failed and/or neglected to make good the Plaintiff's claim. The Plaintiffs have ***‘prima facie***’ case with high chances of success. 15. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in Court or in any other Court between the Plaintiffs and the Defendant over the same subject matter. The Plaintiff also admitted the jurisdiction of the Honourable Court. 16. The Plaintiffs prayed for Judgment to be entered against the Defendant for:- 17. ***Permanent injunctions restraining the Defendant from entering, trespassing and/or claiming plot Number Kwale/Mkongani “A”/909*** 18. ***A declaration that the Plaintiffs are the lawful owners of Plot Number Kwale/Mkongani “A”/909.*** 19. ***Any other relief this Honourable Court deems fit to grant.*** 20. ***Costs of this suit.*** 21. The Plaintiffs responded to the Re – amended Defence and Defence to Counter - Claim wherein they averred that:- 22. Save for what was expressly admitted, the Plaintiffs denied each and every allegation set out in the Re ‑ Amended Defence and Counter - Claim as if the same were set out verbatim and traversed seriatim. 23. In response to the Re ‑ Amended Defence and Counter - Claim filed herein, the Plaintiffs joined issues raised in the Plaint and reiterated them in reply, save to add as follows: 24. The Plaintiffs averred that the property known as Kwale/Mkongani “A”/909 had been sold to Ibrahim Mathias Mlamba by the Defendant’s father, George Okwiya, without issuance of a title. The Plaintiffs stated that it was not true that the Defendant was the co‑registered owner of the said parcel of land. 25. The Plaintiffs further averred that the suit premises had been adjudicated by the Land Adjudication Department, Kwale District, and allocated to Ibrahim Mathias Mlamba on 22nd September, 1982. 26. The Plaintiffs stated that at all material times, Ibrahim Mathias Mlamba was in actual and legal possession of the said parcel of land. 27. The Plaintiffs testified that on 18th December, 2002, the said Ibrahim Mathias Mlamba sold the parcel of land to them and handed over possession of the suit premises. 28. The Plaintiffs averred that they had been in possession since then, having rightfully and legally purchased the suit premises from Ibrahim Mathias Mlamba. 29. The Plaintiffs stated that at the time of filing the suit, they had been in possession of the suit premises for over 14 years, and that their rights to the land had crystallized by effluxion of time. 30. On the Defence to the Counter - Claim, the Plaintiffs averred:- 31. The Plaintiffs reiterated the contents hereinabove and, in defence to the counterclaim, further averred as follows: 32. The Plaintiffs stated that the Defendant had lost any claim (if any) to the land, having not been in possession of the suit premises for more than 12 years. 33. The Plaintiffs averred that the Defendant’s claim was time‑barred and that the Counter - Claim ought to be struck out with costs. 34. The Plaintiffs referred to the Defendant’s own pleadings in the Counter - Claim, wherein:- 35. The Defendant admitted that he had not consented to the Plaintiffs entering the suit premises. 36. The Defendant acknowledged that the Plaintiffs had been in occupation without disturbance for more than 12 years, and had even constructed structures on the suit premises. 37. The Defendant confirmed that the Plaintiffs had been in continuous, peaceful, and uninterrupted occupation for a period exceeding 12 years 38. The Plaintiffs stated that the Defendant himself confirmed that he had never been in possession of the suit premises. 39. The Plaintiffs averred that from the Defendant’s own admissions, the parcel of land known as Kwale/Mkongani “A”/909 ought to be registered in their names, since any entitlement of the Defendant had long been extinguished under Section 17 of the Limitation of Actions Act, Cap. 22 Laws of Kenya. 40. For the foregoing reasons, the Plaintiffs prayed that the Defendant’s Counter - Claim and Re ‑ Amended Defence be dismissed with costs, and that judgment be entered in favour of the Plaintiffs as prayed in the Plaint. * + - 1. **The Opening Remarks by Mr. Chibanda Advocate:-** 41. At the commencement of the hearing of the Plaintiff’s case, on 9th July, 2025, the Counsel for the Plaintiffs had the following opening remarks:- 42. The Counsel commenced by stating that the Plaintiff bought the land in the year 2002. They were bona fide innocent purchaser for value. They executed a Sale Agreement dated 18th December, 2002 for a consideration of Kenya Shillings Fourty Thousand (Kshs. 40,000/=) and which they paid in full and they were issued with receipt. 43. The Learned Counsel intimated that they would endeavor to produce the evidence and the seller who had no objection; the Defendant was the son to the seller of the land. They had occupied the land and constituted a school and also resided there. The Defendant to be extinguished and title deed be issued to the Plaintiff. 44. The Plaintiffs testified on 9th July, 2025 at 1.45 am as follows:- 45. **Examination in Chief of PW - 1 by Mr. Chibanda Advocate.** 46. PW – 1 testified and sworn in Swahili language. He was called HESBON TSUMA MALACHU, a citizen of Kenya holing the national identity card bearing all the details as shown to Court during the hearing of the case. He was a pastor of a church and was aware of the reason he was before the Court. PW - 1 stated that he had recorded a witness statement dated 9th December, 2016. PW - 1 further testified that he had filed a list of documents dated 26th February, 2024 and abandoned the earlier list dated 9th December 2016, producing four documents in support of his case. The Plaintiff Exhibits 1 to 3 produced as MF2 - 4 - Letters of DLASO. 47. PW - 1 testified that after purchasing the land, the parties entered into a Sale Agreement dated 18th December, 2002, signed by the vendor, Mathias Ibrahim Mlamba, and the purchaser, Hesbon Tsuma Malachu, and witnessed by Elisha Mjumba. PW - 1 averred that the consideration was a sum of Kenya Shillings Fourty Thousand (Kshs. 40,000.00/=), and the agreement was produced as Plaintiff Exhibit No. 1. PW - 1 further stated that the vendor issued him with a receipt dated 18th December 2002, which was produced as Plaintiff Exhibit Number 2. PW - 1 testified that the seller never gave him a title deed, though the land measured approximately three acres. 48. PW - 1 averred that the vendor requested for time to process the title and promised to call him once it was ready. Unfortunately, this never happened, and the vendor later passed away. In the meantime, PW - 1 testified that he sought permission to take occupation of the land, upon which he constructed houses in the year 2003, a church in the year 2006, and an Early Childhood Development (E.C.D.) school around the same period. 49. PW - 1 further stated that after the death of the vendor, he undertook a search at the Lands Registry to pursue issuance of a title deed. He testified that the particulars of the land obtained from the search were different from what he had expected. PW - 1 urged the Court to grant him title to the land where he had lived continuously for twenty‑three years. 50. **Cross‑Examination of PW - 1 by Mr. Lijoodi Advocate.** 51. PW - 1 testified that he purchased the plot on 18th December, 2002 from Mathias Ibrahim Mlamba, who prepared the Sale Agreement. PW - 1 stated that his witness was Elisha Mjomba, while M/s. Josephine Ngonyo, his wife at the time, also signed as a witness. PW - 1 clarified that the vendor’s witness was Elisha Mjomba, who acted as caretaker of the land. PW - 1 admitted that M/s. Ngonyo’s signature was appended later on 17th February, 2003, and not on the material date of 18th December, 2002 when the agreement was executed. PW - 1 further testified that he did not conduct an official search before purchasing the land. 52. PW - 1 was referred to the Certificate of Title for Kwale/Mkongani “A”/909, registered in the names of Gideon Morell Okwiya (ID No. 74300) and Nahum Mutali Okwiya (ID No. 13358927), dated 29th August, 2005, which was produced as the Defendant’s exhibit. PW - 1 was also referred to a Sale Agreement dated 8th August, 1979 contained in the Defendant’s documents, bearing the names of Tsuma Mweta Maradi and Gideon Morell Okwiya. 53. PW - 1 testified that for the construction of his house, he only sought approval from the Chief and not the County Council, and the same applied to the church. PW - 1 stated that he met Gideon Morell Okwiya, who indicated that the land was in the names of his son. PW - 1 confirmed that he was never chased away or evicted from the land. 54. PW - 1 testified that he filed the present suit in the year 2016 under a Certificate of Urgency, while the construction of the school commenced in the year 2006. He explained that the reason for filing the suit after ten (10) years was to secure registration for the school. PW - 1 admitted that he had never been evicted nor threatened. He further clarified that from the pleadings, he had not specifically stated the period of occupation on the land, attributing the omission to a typographical error. 55. PW - 1 finally stated that when he acquired the land, he had not obtained consent from either the vendor or the registered owner of the land. He added that he had been following up with the vendor to retrieve the relevant file for purposes of documentation. 56. **Re ‑ Examination of PW - 1 by Mr. Chibanda Advocate.** 57. PW - 1 testified that Mr. Elisha Mjomba was the witness for both parties to the Sale Agreement, and that he acted as caretaker for the Vendor. PW - 1 clarified that Josephine Ngonyo did not sign the Sale Agreement on the material date as she was unwell and that explained why her signature was appended later. PW - 1 was referred to the title deed issued on 29th August, 2005, with the date of entry recorded as 16th August, 1989. PW - 1 stated that he constructed permanent structures on the land in 2006, including a house. He testified that a stranger later came onto the land, which prompted him to conduct a search at the Lands Registry. 58. PW - 1 averred that despite efforts, he was unable to trace the said person, and consequently filed the present suit in year 2016. He explained that in the intervening period he had been pursuing issuance of a title deed. PW - 1 further stated that he approached the Court under a Certificate of Urgency in order to justify and obtain registration of the school established on the suit property. 59. On the same day the Plaintiff called her second witness PW - 2 who testified as follows:- 60. **Examination in Chief of PW - 2 by Mr. Chibanda Advocate.** 61. PW - 2 was sworn and in Swahili language. She was called JOSEPHINE KABUNDA NGONYO, a citizen of Kenya with the national identity card bearing all the details as shown to Court during the hearing session. She resided in Nkuranya and was a primary school teacher by profession. PW - 2 testified that she had filed a witness statement dated 26th February, 2024, which she wished to adopt as her evidence‑in‑chief. PW - 2 urged the Court to declare the suit land as belonging to her and her husband, stating that they had jointly purchased it. PW - 2 was referred to the Sale Agreement dated 18th December, 2002 and confirmed that she signed it as a witness on 17th February, 2003, explaining that she had been unwell on the material date of execution and therefore could not sign at the same time as the other parties. 62. **Cross ‑ Examination of PW - 2 by Mr. Lijoodi Advocate.** 63. PW - 2 testified that when she and her husband purchased the land on 18th December, 2002, they immediately took possession of the same. PW - 2 clarified that the reference to “transfer” in her witness statement was a typographical error, and that it was intended to read “Sale Agreement” instead. PW - 2 further stated that as a co ‑ Plaintiff in the case, she had never signed any authority for the 1st Plaintiff to plead on her behalf. She explained that, for instance, the Plaintiff’s Replying Affidavit did not bear her signature, nor did the Notice of Motion application dated 9th December, 2016. PW - 2 added that the Supporting Affidavit similarly did not bear her name and was not executed against the Sale Agreement. 64. PW - 2 testified that she had requested approval for the construction of the school and was granted verbal approval. With respect to the church, PW2 stated that her husband, being a priest, had obtained approval for its establishment. 65. **Re ‑ Examination of PW - 2 by Mr. Chibanda Advocate.** 66. PW - 2 testified that the 1st Plaintiff was her husband. 67. The Plaintiffs called PW - 3 who testified as follows: * + - 1. **Examination in Chief of PW - 3 by Mr. Chibanda Advocate.** 68. PW - 3 was sworn and testified in Swahili language. He was called MWANGOME ELISHA MJOMBA, a citizen of Kenya with the national identity card with all the particulars shown to Court during the hearing session. He was the caretaker of the suit property at the material time and acted as a witness to the Sale Agreement between the Plaintiffs and the vendor, Mathias Ibrahim Mlamba. PW - 3 testified that he signed a witness statement dated 26th November, 2024, which he adopted as part of his evidence‑in‑chief. PW - 3 confirmed that he was present during the execution of the Sale Agreement and appended his signature as a witness thereto. 69. **Cross‑Examination of PW - 3 by Mr. Lijoodi Advocate.** 70. PW - 3 testified that he was a neighbour to the suit property. PW - 3 was referred to the Sale Agreement dated 8th August, 1979 produced by the Defendant, and he stated that the parties at the time were neighbours, namely Tsuma Mweta Maradi and Gideon Morell Okwiya. 71. PW - 3 further testified that Okwiya later sold the land to Mathias Ibrahim Mlamba, who was the vendor to the Plaintiffs. PW - 3 stated that Mathias showed him certain documents to demonstrate that he was the owner of the land. PW - 3 confirmed that in respect of the Sale Agreement dated 18th December, 2002, he was the only witness present, as the wife of Hesbon Tsuma Malachu was unwell on the material date. PW - 3 testified that he had never met Nahum Mutali Okwiya personally. 72. PW - 3 stated that he had never heard of any land dispute until the year 2016, when people came claiming ownership of the property. 73. **Re ‑ Examination of PW - 3 by Mr. Chibanda Advocate.** 74. PW - 3 reiterated that he was never involved in the making of the sale agreement. He was a witness for both the vendor and purchaser. 75. The Plaintiff called PW - 4 on 13th October, 2025 who testified that:- * + - 1. **Examination in Chief of PW - 4 by Mr. Chibanda Advocate.** 76. PW - 4 was sworn and testified in English language. He was identified as JOHN MWANGI KARANJA, a citizen of Kenya a holder of the national identity card bearing all the particulars as shown to Court during the hearing. He was the Divisional Land Adjudication and Settlement Officer (DLASO) and also served as Assistant Director, Land Adjudication and Settlement Officer, under PF No. 2006048080 issued on 27th December, 2022. PW - 4 testified that he was in Court pursuant to a summons requiring him to give evidence in respect of Land Parcel Kwale/Mkongani “A”/909. PW - 4 stated that he had produced two ( 2 ) documents, namely: 77. The Demarcation Book; and 78. The Adjudication Record. 79. PW - 4 explained that according to the Demarcation Book, the land was demarcated on 17th April, 1978, and the recorded owners were two individuals, namely Mr. Gideon Morell Okwiya and Abraham Motall Okwiya. PW - 4 testified that the interest was recorded as common ownership, with each individual holding half and divided shares. PW - 4 further stated that the two recorded owners had purchased the land from Tsuma Mweta Maradi, holder of Identification Card No. 4634344/67. PW - 4 explained that it was from the Demarcation Book that the Adjudication Record was prepared. 80. PW - 4 testified that the Adjudication Record indicated that the land measured 1.2 hectares, and it was clearly shown therein that the land moved from Tsuma Mweta Maradi, whose name was cancelled, to the two persons, namely Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 stated that this was all he could say about the parcel of land. PW - 4 further testified that the Adjudication Record was prepared on 8th March, 1980 and signed by the Execution Officer. He added that he joined the office in the year 2006, and confirmed that the record was duly prepared and executed. 81. **Cross ‑ Examination of PW - 4 by Mr. Lijoodi Advocate.** 82. PW - 4 testified that he came to Court to give evidence on Land Parcel Kwale/Mkongani “A”/909, and that he had brought with him documents relating to the registration of the land. PW - 4 explained that the effect of these documents was to prepare the registration of ownership of land, which in essence were taken to the Land Registrar for issuance of title. PW - 4 clarified that if there were no names or corrections on the records, no one could transact on the land. 83. PW - 4 stated that from the records, the name of Mathias Ibrahim Mlamba did not appear, and there was no agreement between Mr. Mlamba and Gideon Morell Okwiya. PW - 4 was referred to the Sale Agreement dated 8th August, 1979, where the parties were Tsuma Mweta Maradi and Gideon Morell Okwiya, and confirmed that the agreement was executed before the adjudication record was prepared. 84. PW - 4 was further referred to the title deed dated 29th August, 2005, which was registered in the names of Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 confirmed that the Demarcation Record was produced as Defence Exhibit Number 3, with an entry dated 13th April, 1978, and the Adjudication Record was produced as Defence Exhibit Number 4. 85. The Plaintiffs marked their case closed on 13th October, 2025 by its counsel on record Mr. Chibanda Advocate. 86. **The case of the Defendant** 87. The Defendant responded the Plaintiffs’ claim through a re – Amended Statement of Defence and Counter - Claim in the following terms: - 88. Save for what was expressly admitted, the Defendant denied the contents of the Plaint as if the same were set out verbatim and denied seriatim. 89. The Defendant admitted the contents of Paragraphs 1 and 2 of the Plaint as being mainly descriptive of the parties, save that his address for the purposes of the suit. 90. In reply to Paragraph 3 of the Plaint, the Defendant denied the contents thereof and stated that there existed no privity of contract between the Plaintiffs and himself, and the Plaintiffs were put to strict proof thereof. 91. The Defendant further stated that he was a stranger to any alleged sale between the Plaintiffs and the late Mathias Ibrahim Mlamba, and the Plaintiffs were put to strict proof thereof. 92. In response to Paragraphs 4, 5 and 7 of the Plaint, the Defendant denied having sold the suit plot to any person or to any other registered owners, and put the Plaintiffs to strict proof thereof. 93. The Defendant denied the allegations contained in Paragraphs 6 and 7 of the Plaint in toto and put the Plaintiffs to strict proof thereof. 94. The Defendant denied Paragraph 8 of the Plaint and reiterated that he was the co‑registered owner of the suit plot, putting the Plaintiffs to strict proof of the allegations contained therein. 95. The Defendant averred that he was the co ‑ registered owner of Plot No. Kwale/Mkongani “A”/909‑109. 96. The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent. 97. The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval. 98. The Defendant averred that due to the Plaintiffs’ acts of trespass, he had suffered loss and damage since the year 2003 to date. 99. The Defendant relied on the following particulars of loss and Damage:- 100. Illegal construction of structures on the suit plot. 101. Illegal acquisition of the suit plot by unlawful retention on the part of the Plaintiffs 102. The Defendant stated that the Plaintiffs’ suit was bad in law and fatally defective, and that he would raise a Preliminary Objection on a point of law to that effect at the hearing, seeking to have the suit struck out. 103. The Defendant denied the contents of Paragraph 9 of the Plaint and stated that there had been no demand or notice of intention to sue, rendering the suit premature and a non ‑ starter. 104. The Defendant admitted Paragraph 11 of the Plaint. 105. The Defendant admitted the jurisdiction of the Honourable Court. 106. The Defendant in his Counter - Claim averred that:- 107. The Defendant reiterated the contents of the entire Amended Statement of Defence as if the same were set out verbatim herein. 108. The Defendant averred that he was the co‑registered owner of Plot No. Kwale/Mkongani “A”/909‑109, which had been acquired by his late father, Gideon Morell Okwiya, in the year 1979 from the initial owner, Tsuma Mweta Maradi, and thereafter registered in the names of Gideon Morell Okwiya and the Defendant. 109. The Defendant stated that he had never entered into any transaction of sale over the subject property with any other person. 110. The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent. 111. The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval. The Defendant stated that as a result of the invasion by the Plaintiffs, he had suffered massive damages. 112. The Defendant relied on the following particulars of loss and damage:- 113. Total loss of use of the land from the year 2003 to date. 114. Further to the above, the Defendant had suffered stress and anguish over the aforesaid losses and the Defendant claims for damages. 115. The Defendant prayed that the Plaintiffs’ suit be struck out with costs to the Defendant for Judgment to be entered against the Plaintiffs for:- 116. ***An Order of mandatory injunction to compel the Plaintiffs, their relatives, servants and/or agents or any other persons under instructions of the Plaintiffs and to give vacant possession of the property known as KWALE/MKONGANI "A"/ 909-109 to demolish all the illegal structures constructed thereon and to remove all the materials failing which the structures be demolished and removed at their cost.*** 117. ***An order of Permanent Injunction restraining the persons mentioned in (i) above from trespassing upon and/or in any way dealing and/or interfering with the suit property.*** 118. ***General damages for loss of use of land from the year 2003 to date and interests at prevailing court rates.*** 119. ***Costs of this suit and interests at courts rates*** 120. ***In the alternative:-*** 121. ***The Defendant to sell the suit premises to the Plaintiffs at market rates but inclusive of agreed mesne profits.*** 122. ***The Defendant, if need arises, to offer a lease agreement of the suit premises to the Plaintiff's at agreed sums to be agreed upon by parties*** 123. The Defendant’s counsel had the following remarks to make:- * + - 1. **Opening remarks by the Counsel to the Defendant, Mr. Lijoodi Advocate.** 124. At the beginning of the Defence case, the Learned Counsel for the Defendant submitted that the Defendant was the legal registered owner of the suit land. It was his contention that he acquired it having succeeded to it upon the death of his father in the year 2012. 125. The Learned Counsel stated that the Plaintiffs were mere squatters who commenced construction of structures on the land after the Defendant’s father had refused to sell it to them. The Counsel further averred that when the Plaintiffs were requested to demolish the structures, they insisted that they had purchased the land from Mathias Ibrahim Mlamba. 126. The Counsel submitted that the Plaintiffs had approached the deceased with the intention of purchasing the land, but no valid sale was ever concluded. The Counsel contended that the Plaintiffs rushed to Court in order to avert eviction, and that their defence founded on adverse possession did not lie in law. 127. The Defendant called his first witness DW - 1 on 13th October, 2025 who testified that: 128. **Examination ‑ in ‑ Chief of DW - 1 by Mr. Lijoodi Advocate.** 129. DW - 1 was sworn and testified in English language. His name was NAHUM MUTALI OKWIYA, a citizen of Kenya ahlder of the national identity card bearing all the details as shown to Court during the hearing of the case. He was married with two children and worked as a Consultant. DW - 1 testified that he had recorded a witness statement on 2nd June, 2017, which he wished to adopt as part of his evidence. DW - 1 stated that his father had acquired the land in the year 1979 pursuant to an execution of a Sale Agreement. He further testified that a title deed was issued in August, 2005. 130. DW - 1 averred that after collecting the title deed, he and his father visited the land and found the Plaintiffs already in occupation. DW - 1 stated that his father later passed away. He testified that the Plaintiffs had expressed interest in purchasing the land, but they were informed that there was no intention of selling it. DW - 1 stated that he was surprised when the Plaintiffs instituted the present suit. 131. DW - 1 clarified that only he was sued as Defendant, which meant the Plaintiffs were aware that his father had passed on. DW - 1 testified that his father had never sold the land to Mathias Ibrahim Mlamba, and that there had never been any dispute between them and Mlamba. DW - 1 stated that the Plaintiffs had claimed to have put up structures, but he questioned whether they had obtained any approvals. He added that the Plaintiffs had only occupied half of the land. 132. DW - 1 testified that he had filed a list of documents dated 2nd June 2017, comprising four documents. He referred to the Original Sale Agreement dated 8th August, 1979 (Defendant Exhibit Number 4), noting that his name did not appear therein as he was a minor at the time. He also referred to the Title Deed dated 29th August, 2005 (Defendant Exhibit Number 1), and to two receipts of payment to the Department of Lands, Kwale, dated 18th August, 2005 (Defendant Exhibits Number 6 (a) and 6 (b)). DW - 1 further referred to a Valuation Report prepared by Paul Wambua Valuers (Defendant Exhibit Number 7), explaining that it had been commissioned to ascertain the value of the land. 133. DW - 1 testified that in his Defence and Counter - Claim, he sought a permanent injunction against trespass, general damages, and costs. In the alternative, DW - 1 stated that if the Plaintiffs admitted to trespassing on the land, he was willing to sell the land to them at the prevailing market rate. DW - 1 added that he had been communicating with the Plaintiffs verbally regarding the matter. 134. **Cross ‑ Examination of DW - 1 by Mr. Chibanda Advocate.** 135. DW - 1 testified that he was a Consultant residing in Nairobi. He stated that although he had visited the land severally, he did not reside on it, nor did any of his relatives live there. DW - 1 confirmed that the land had been sold in the year 1979 pursuant to a Sale Agreement, but he was not a party to the agreement and had never signed it. He testified that the title deed was issued in the year 2005, though he did not know why it had taken so long to be processed. 136. DW - 1 stated that prior to issuance of the title, his father had informed him about the land. He testified that by the year 2005, when he was 30 years old, he found the Plaintiffs already in occupation of the land. DW - 1 explained that he and his father engaged the Plaintiffs verbally and, in good faith, requested them to vacate. 137. DW - 1 testified that his father passed away in the year 2012, and thereafter he continued to engage the Plaintiffs verbally, requesting them to leave the land. He admitted that there was no documentary proof of these engagements, as all communications had been verbal. DW - 1 stated that they did not want to appear inhuman in their dealings with the Plaintiffs. 138. DW - 1 testified that after discovering the Plaintiffs’ occupation as squatters, they refrained from harsh measures, but the Plaintiffs rushed to Court and filed the present suit. DW - 1 stated that they had contemplated seeking a court order for eviction. He added that upon finding that the Plaintiffs had constructed structures on the land, they verbally asked them to vacate. 139. DW - 1 referred to the Amended Defence, noting that they had proposed an alternative of selling the land to the Plaintiffs. He clarified that this did not mean they had no interest in the land. DW - 1 testified that his father had told him he had been communicating with the Plaintiffs, though he had never disclosed the nature of the business between them. 140. **Re ‑ Examination of DW - 1 by Mr. Lijoodi Advocate.** 141. DW - 1 testified that the Sale Agreement signed between Mathias Ibrahim Mlamba and the Plaintiffs was dated 17th February, 2003, whereas the title deed to the suit property was issued in the year 2005. DW - 1 clarified that he was not aware of any dealings between his father and the Plaintiffs, and that his father had never committed himself in any way to them. 142. DW - 1 reiterated that he had a personal interest in the land and that what he intended to do with it was solely his prerogative. DW - 1 further testified that his father was buried in Kilifi, and that he himself had been born and raised in Mtwapa, Mombasa, though he no longer resided at the Coast. 143. The Defendant marked his case closed on 13th October, 2025 through his Learned Counsel, Mr. Lijoodi.. 144. **Submissions** 145. Upon the closure of the Plaintiff’s and the Defendants’ cases on 13th October, 2025, the Honourable Court directed that all parties file and exchange their respective Written Submissions within the stipulated timelines. 146. Pursuant to this, all parties fully complied. Thereafter, the Honorable Court reserved a date to deliver its Judgment on 2828th July, 2026 accordingly. 147. **The Written Submissions by the Plaintiffs** 148. The Plaintiffs through the Law firm of Messrs. M. Chibanda & Company Advocates filed their written submissions dated 14th November, 2025. Mr. Chibanda Advocate commenced his submission by providing brief historical background of the matter. He stated that the property in question is KWALE/MKONGANI ‘A’/909. The 1st Plaintiff upon conducting due diligence lawfully purchased the same from one Mathias Ibrahim Mulamba (deceased) vide a sale agreement dated 18th December, 2002 for a valid consideration of a sum of Kenya Shillings Fourty Thousand (Kshs. 40,000.00/=). Upon purchase, the Plaintiff took vacant possession of the suit property, developed on it by constructing dwelling houses where they live with their family, a church and a primary school. They had lived there for 23 years now. 149. Sometime around the year 2003, the Plaintiff upon learning of the existence of one Gideon Morell Owiya, visited him in Mombasa to follow up on documentation of the suit property. The said Gideon Morell Okwiya who was sickly by then informed them that he would deal with the issue when he gets better. Unknown to the Plaintiffs, a title deed was issued on 29th August, 2005 to GIDEON MORELL OKWIYA (deceased) and NAHUM MUTALI OKWIYA. The Plaintiffs only came to learn on this when they conducted a search at the Kwale Lands Registry. It was after the search that the Plaintiffs realized that the property was registered in the Defendant and immediately proceeded to seek legal redress. The Defendant, though a co registered proprietor of the suit, his rights over the same extinguished as a result of effluxion of time. 150. On the background and abridged facts. The Learned Counsel submitted that sometimes in the year 2002, the Plaintiffs, a husband and wife were in search of a land to buy. They met Elisha Mwang'ombe Mjomba who introduced them to his neighbour Mathiase Ibrahim Mlamba who was selling land - the suit property herein. The Plaintiffs upon physically investigating the land and getting confirmation from the neighbour of the suit land one Elisha Mwang'ombe Mjomba, entered into a sale agreement dated 18th December, 2002 for the purchase of it. The agreement was witnessed by the said Elisha Mwang'ombe Mjomba and the 2nd Plaintiff herein. A consideration of a sum of Kenya Shillings Fourty Thousand (Kshs. 40,000.00/-) was paid and a receipt was issued to that effect. 151. The Plaintiffs upon purchasing the suit land, they took vacant possession of the same, constructed a dwelling house therein where they live with his family to date. Consequently, the constructed a church therein which has and a primary school which have been in operation ever since to this very day. The Plaintiff have been in a continuous possession and occupation of the suit for 23 years now. Unknown to them, a title deed was issued to one Gedion Morell Okwiya and Nahum Mutali Okwiya on the 29th August, 2005. That the Plaintiffs only came to learn of this when strangers started visiting the suit land claiming ownership which prompted them to do a search at the Kwale Lands Registry. It was at this point that the Plaintiffs sought legal advice which culminated into filing the present suit in this Honorable court seeking to protect their proprietary rights in the suit property. 152. The evidence herein according to the Learned Counsel on the Plaintiffs’ case was that the Plaintiffs in support of their case called four ( 4 ) witnesses. They testified as PW – 1, 2, 3 and 4 respectively on the 9th July, 2025. While giving his sworn testimony under oath. PW - 1 informed court that he is a pastor and that he stays in Burani on the suit property herein. He adopted his statement dated 9th December, 2016 as part of his evidence in chief. He produced the following documents in support of their case; 153. Plaintiff Exhibit Number 1 - His National Identity Card. 154. Plaintiff Exhibit Number – 2 - Sale agreement dated 18th December, 2002. 155. Plaintiff Exhibit Number 3- Payment receipt of Kshs. 40,000/= dated 18th December, 2002. 156. PW - 1 went ahead to state that upon purchase of the suit land he took vacant possession constructed his dwelling house where he stays with his family to date, a church where he pastors and a primary school. He prayed that they be declared rightful owners of the suit property having lawfully purchased the same. During cross examination, he indicated to court that when he purchased the land, it did not have documentation, something that he confirmed and that the Vendor Mathias Ibrahim Mulamba had bought it from Gedeon Morell Okwiya. That he later pursed the said Gideon Morell Okwiya who assured him that he will deal with the issue of documentation once he gets better because he was sick. 157. It was his further evidence in cross examination that he later came to learn that the property was registered in the Defendant herein and Gedion Morell Okwiya when he conducted a search at the Kwale Lands Registry after which he sought legal redress from various law firms which culminated into filing this suit in the year 2016 under Certificate of Urgency. PW - 2 was the 2nd Plaintiff. She testified under oath that she was the wife of the 1st Plaintiff and a teacher by profession. She adopted her statement dated 26th February, 2024 as part of her evidence in chief. It was her testimony they bought the suit property way back in the year 2002 from Mathias Ibrahim Mlamba and she witnessed the sale agreement. That they had ever since lived on the suit land where they had established their permanent home, a church and a primary school which started way back in year 2006. She prayed that they be declared the rightful owners of the suit property for they purchased the same. 158. On cross examination, she indicated that when strange people started coming to their land way back in the year 2003 claiming ownership of the same, they pursued the said Gedion Morell Okwiya for documents who said he would deal with it when he gets better because he was sick. That he died before it could be done and that when they later realized the property was registered in the names of the Okwiya’s they sought legal redress which culminated in filing of this suit in the year 2016. Elisha Mwang’ombe Mjomba testified as PW - 3 informed court that he lives in Burani and a neighbour of the Plaintiffs. He adopted his statement dated 26th February, 2024 as part of his evidence in chief. He testified under oath that he was the one who introduced the Plaintiffs to Mathias Ibrahim Mlambe, that he was a witness to the sale agreement and prayed that the Plaintiffs be given the suit land because they lawfully purchased the land. 159. Mr. Mwangi Karanja testified as PW - 4 on the 13th October, 2025. He testified that he works in the Land Adjudication office, Kwale. He testified that according to their record, the suit land was allocated to Gideon Morell Okwiya and Nahum Mutali Okwiya in on the 13th April, 1978. With that the Plaintiff closed their case. 160. The Learned Counsel submitted this on the Defendant’s case that the Defendant one Ms. Nahum Okwiya Mutali testified on the 13th October, 2025. He produced the title deed of the suit property, sale agreement among other documents. He further stated that he was a co - registered owner of the suit property together with his father. That since the year 2002 when he learned of the Plaintiffs occupancy of suit, he did nothing to protect their rights on the suit land than engaging in negotiation which no proof of the same was tendered. 161. During cross examination, he confirmed that he learned of the existence of the Plaintiffs on the suit land way back in the year 2002. He referred to the as squatters. Upon being asked what he did to protect his interest in the suit land since the year 2002 when he knew that Plaintiffs are occupying their land, he said that he engaged them in negotiation which proof he could not produce. 162. He further confirmed to court that he stayed in Nairobi, had never lived on the suit land or anywhere near Burani and that he was aware the Plaintiff had established their home therein, a church and a primary school. asked on why prior to the filing of this case he never took any steps to evict the said squatters, he said he was engaging them in negotiation. He could however not give any evidence of the said negotiations. 163. According to the Learned Counsel a sale agreement was a crucial document in conveyancing. It kickstarted the entire process. It was a conclusive proof that there was intention to sell, meeting of minds and payment of valuable consideration. These was the key elements of a valid contract. Further, there was a particular period, after the lapse of which, without any action, the right to own land extinguishes by effluxion of time. 164. The Learned Counsel relied on the following issues for determination:- 165. Whether the Plaintiffs lawfully purchased he suit property. 166. Whether the Plaintiffs qualify as Bonafide purchasers for value without notice. 167. Whether the Defendant's rights on the suit property extinguished by virtue of effluxion of time. 168. Whether the Plaintiff was entitled to the remedies sought 169. The Learned Counsel relied on the provision of Section 7 of the Land Act, provides that Title to land may be acquired through-(a)........;(b)...... ⋯⋯(c)⋯(d)prescription; 170. The Registration of Land Act, Cap. 300 provides under Section 28(h) that:- **“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 on the register-** **(h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;”** 1. The Law of Contract Act, Cap. 23 Laws of Kenya provides in Section 3 (3) (a) &(b) that:- **“No suit shall be brought upon a contract for the disposition of an interest in land unless-** **(a)the contract upon which the suit is founded-** **(i)is in writing;** **(ii)is signed by all the parties thereto; and** **(b)the signature of each party signing has been attested by a witness who is present when the contract was signed by such party”.** 1. The Law in Section 7 of the Limitation of Actions Act, Cap. 22 provides:- **“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. On whether the Plaintiffs lawfully purchased the suit property. The Learned Counsel submitted that the law on contracts for disposition of land is well settled in Section 3(3) a and b of the Law of Contract Act as espoused above. The agreement has to be in writing, signed by all parties and the signatures be attested by a witness present during the signing of the contract. The 1st Plaintiff who testified as PW - 1 produced as Plaintiff Exhibit Number 2 a sale agreement dated 18th December, 2002. The said agreement was signed by both him and the vendor Mathias Ibrahim Mlamba. The signing was attested by PW - 3 Elisha Mwang'ombe Mjomba who was present during the signing of the contract. From the foregoing it was their humble submission that Plaintiffs met all the legal requirements with regards to purchasing the suit property. As such, it suffices to say, which they hereby submitted that the Plaintiffs lawfully purchased the suit property. They humbly prayed and urged this Honourable court to find as such. 2. On whether the Plaintiffs qualified as bona fide purchasers for value without notice. The Learned Counsel submitted that the Black’s Law Dictionary, 9th Edition defines “**a Bonafide Purchaser**”. Additionally, in the case of:- ***“Samuel Kamere – Versus - Lands Registrar, Kajiado [2015] KECA 644 (KLR)”*** the Court of Appeal; Nambuye, Kiage, Murgor JJ,A, sitting in Nairobi had the following to say on a Bonafide purchaser for value:- ***“......In order to be considered a bonafide purchaser for value, he must prove that he had acquired a valid and legal title, secondly, that he carried out the necessary due diligence to determine the lawful owner from whom he acquired a legitimate title, and thirdly that he paid valuable consideration for the purchase of the suit property”*** 1. The question that arises is whether the Plaintiff met the three prerequisites of a Bonafide purchaser. It was their humble submissions that indeed the Plaintiffs qualify as Bonafide purchasers for value. They proceeded hereunder to demonstrate the said land. 2. The question was then did the Plaintiffs acquire a valid and legal title? They respectfully submitted that the Plaintiffs acquired valid and legal title. The Plaintiffs testified that when they wanted to buy land they were introduced in the year 2002 by PW - 3 to one Mathias Ibrahim Mlamba his neighbour whom he knew all along as the owner of the suit land. Upon meeting him, the Plaintiffs inquired of the documents of the suit land before purchasing, he informed them that the same are yet to be processed. With that, they believed that Mr. Mlamba was the valid owner of the suit property. On that basis the Plaintiffs engaged Mr. Mlamba as such, got into a valid contact of sale which was executed lawfully and paid the consideration. As such, all the requirements of a valid contract were met and thus the Plaintiffs acquired valid and legal title. 3. On whether the Plaintiffs carried the necessary due diligence to find the lawful owner? The Learned Counsel averred that by that time, the year 2002, there was no proper and/or established documentation for the suit land. All the Plaintiffs' due diligence yielded little as to the ownership of the suit land. Thus, all efforts to find the lawful owner, other than Mathias Ibrahim Mlamba bore no fruits. When they later learned of the lawful owner, it was their evidence that they engaged him and he promised to follow up on it. Unfortunately, that was not to be as they later learned that a Title Deed of the suit property was issued in the year 2005 to the lawful owner, 3 years after the Plaintiffs had finalized the transaction. As such, the Plaintiff diligently did all the necessary to find the lawful owner in vain. 4. Thirdly, was valuable consideration paid for purchase of the suit property? During the course of the hearing, the 1st Plaintiff presented as receipt of a sum Kenya Shillings Fourty (Kshs.40,000.00/=) as Plaintiff Exhibit Number . 3 showing that valid consideration for the suit property was paid and acknowledged. It was their submission that the 3rd requirement on payment of valuable consideration was equally met. In totality, it was their summation in submission that the Plaintiffs do qualify and are actually Bonafide purchasers for value as envisaged in the Appellate decision quoted above. They humbly prayed and urged this Honourable court to arrive at that determination. 5. On whether the Defendant’s rights on the suit property extinguished by virtue of effluxion of time. The Learned Counsel contended that in the unlikely event that this court found the Plaintiffs not to be Bonafide purchasers for value, they submitted that the Defendant’s rights in the suit land have extinguished. The Defendant while testifying before court confirmed that he came aware of the existence of 'squatters' the Plaintiffs herein on the suit property sometime in the year 2002, 2003 or thereabouts. He further confirmed that the Plaintiffs had established their home in the suit property, built a school and a church therein that was operational. They had been in the suit land for 23 years now. 6. The Defendant went ahead to confirm that even after learning of the existence of the Plaintiff on the suit, he did absolutely nothing to evict them or otherwise assert his proprietary rights. No suit was filed neither did he do any efforts to drive the alleged squatters out of the suit land. It was until when the Plaintiff filed this suit that he responded with a re Amended Statement of Defence and Counter - Claim amended on 24th January, 2024. 7. There was a period of at least 14 years of unexplained inactivity by the Defendants from year 2002 when the Plaintiff got into the suit land to the year 2016 when the suit was filed. The Defendant first filed his defence in the year 2017 and a Counter - Claim in year 2024. These are 15 and 22 years respectively that the Defendant took to assert his rights on the suit land if any. This was too much time. The law on time limitations to bring an action to recover land was well settled in the provided Section 7 of the Limitation of Actions Act, Cap. 22 which limit it to 12 years. 8. In his own admission, the Defendant testified that by year 2002 or thereabouts he became aware of the Plaintiffs on the suit land. As to what prevented him from instituting an action to evict them and/or asserts his rights was not explained in court. Clearly the Defendant sat on his rights only to wake up with a Counter - Claim after the Plaintiffs filed this suit. His claim was unsustainable in law. It was an established maxim of equity that Equity aids the vigilant, not the indolent. As such, it was their submissions that the Defendant's rights on the suit property extinguished when the 12 years passed without him taking any action to protect his right on the suit land. They urged this court not to aid the Defendant's indolence. 9. From the time when the Defendant learned of presence of the suit who had got in without his express permission as the registered owner of the suit land, time started running and any vigilant person would have moved with speed to protect and/or assert their rights on the land. This did not happen; such level of indolence should not be entertained by this court. The Defendant should not benefit from his indolence. The Plaintiffs testified that since 2002 when they took possession of the suit land, they established their homestead therein, a primary school which was operational and to date has a pupil population of 300 and a church of at least 70 adult members in average. They had been in continuous occupation of the suit property for 23 years now and had never parted with possession whatsoever. 10. According to the Section 7 (d) of the Land Act, one way of acquiring land is through prescription. Additionally, Section 28(h) of the Land Registration Act provides for overriding interests on title over land. In as much as the Defendant is the Registered owner of the suit property, the 23 years that the Plaintiffs have continuously and openly been in occupation of the suit land overrides the title and entitles them to same vide prescription. 11. On whether the Plaintiffs was entitled to the remedies sought. The Learned Counsel submitted that the Plaintiffs had demonstrated that they lawfully purchased the suit property, was bonafide purchasers and that the Defendant's rights on the suit property extinguished by effluxion of time. Thus, they was entitled to the remedies sought in the Plaint. 12. In disposition, the Learned Counsel prayed:- 13. **Permanent injunctions restraining the Defendant from entering, trespassing and/or claiming plot No. Kwale/Mkongani “A”/909.** 14. **A declaration that the Plaintiffs are the lawful owners of plot No. Kwale/Mkongani “A”/909.** 15. **Any other relief this Honourable court deems fit to grant.** 16. **Costs of this suit.** 17. In conclusion and summation and in the view of the foregoing submissions, the Learned Counsel submitted that it was the Plaintiffs’ humble prayer while urging this Honourable Court to find in their favour and grant the orders as prayed in the Plaint. B. **The Written Submissions by the Defendant.** 1. On behalf of the Defendant, the Law firm of Messrs. Patricia Langat Advocates filed a brief written submissions dated 16th December, 2025. M/s. Langat Advocate commenced her submission by providing the Court with a short background of the matter. According to the Learned Counsel informed the Court that it was a case involving suit Plot to wit the Defendant his late father were first registered owners of it. The Defendant bought the said parcel when it was still under the land Adjudication stage. 2. Subsequently, title deed was issued on 29th August, 2005. By 2003, the Defendant had started the process of having the Plaintiffs to vacate the suit land. The Counsel referred the Court to the contents of Paragraph 4 of the submission by the Plaintiff as the Defendant and his father were not indolent. Indeed, the Plaintiff had wanted to purchase the land from the Defendant’s father. However, his father was not ready to dispose off it. He wanted to retain quiet possession of it. 3. As fate would have it, the Defendant’s father fell ill and passed on. It was during that period that the Plaintiff instituted this suit against the Defendant. Between the years 2005 and 2011 the Plaintiff were busy looking for a way to purchase the suit land. 4. The Learned Counsel drew the following three ( 3 ) issues for its determination. Firstly, how could a party approach Court in pleadings for a claim of land adverse possession. Secondly, did the Plaintiff purchase the suit land; and Thirdly, the Matheas Ibrahim Mlamba ever own the land. 5. On the first issue. The Learned Counsel averred that the Plaintiff in his Plaint did not plead for an order for land adverse possession. They never filed an Originating Summons as was required under the provision of Order 37 of the Civil Procedure Rules, 2010, Sections 7, 13, 17 and 38 of the Limitation of Action Act, Cap. 22. Instead of doing so, according to the Learned Counsel, they only filed a reply to Defence in year 2024 after being served with an Amended Defence and Counter – Claim in 2023. It was their purported Reply to Defence whereby they raised afresh the claim for land adverse possession. 6. It was the contention by the Learned Counsel that this legal issue had never been pleaded in their Plaint. It was all an afterthought. In any case, it ought to have been brought out under a filed Originating Summons as required by law. To buttress on this preposition, the Counsel relied on the decision in the case of:- ***“Chogo & Others – Versus – Torus & 7 Others Miscellaneous Civil Application Number 134 of 2013”*** . The Court held that the relevant provision of the Law had to be adhered with. In the instant case, this process was never applied. Further, the Learned Counsel relied to the famous case of ***“Lewa – Versus – Mwagandi (COA), Malindi – Civil Appeal Number 56 of 2014”***. 7. In a nutshell, the Counsel held that these provisions which were couched in mandatory terms. Despite of this, the Plaintiff were in total breach of the requirements. Thus, the claim for land adverse possession as pleaded by the Plaintiff was unripe. Indeed, the title was issued on 29th August, 2005 while the suit was filed on 9th December, 2006 which was 11 years and four ( 4 ) months. As such the required 12 years was yet to lapse to obtain the relief for the land adverse possession was not met. For these reasons, the Learned Counsel urged the Court to dismiss the suit with cost. 8. **Analysis & Determination** 9. I have keenly considered all the filed pleadings, the oral testimony adduced by both the Plaintiffs’ and Defendant’s witnesses, the documentary evidence produced, the written submissions filed by the Counsel, and the authorities cited. I have also taken into account the relevant provisions of the Constitution of Kenya, 2010, the Land Registration Act, No. 3 of 2012, the Limitation of Actions Act, Cap. 22, and other applicable statutes. 10. Having said as much I will now proceed to the issue; for this Honourable Court to reach an informed, just, equitable, and reasonable decision on the subject matter, the issues for determination have been crystallized into the following sub ‑ headings: - 11. ***Whether the Plaintiffs lawfully purchased and acquired possession of the suit property Kwale/Mkongani “A”/909 from Mathias Ibrahim Mlamba.*** 12. ***Whether the Defendant, as co‑registered proprietor, holds a valid and indefeasible title to the suit property.*** 13. ***Whether the Plaintiffs’ occupation of the suit property amounts to trespass or whether their claim of land adverse possession has crystallized by effluxion of time.*** 14. ***Whether the Defendant’s Counter - Claim for permanent injunction, damages, and costs is sustainable in law.*** 15. ***Who should bear the costs of the suit.*** ***ISSUE No. (a) Whether the Plaintiffs lawfully purchased and acquired possession of the suit property Kwale/Mkongani “A”/909 from Mathias Ibrahim Mlamba?*** 1. Under this sub - title, I have carefully considered the pleadings, the oral testimony of the Plaintiffs’ witnesses, the documentary evidence produced, and the submissions of the Learned Counsel. I have also taken into account the relevant provisions of the Constitution of Kenya, 2010, the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, together with applicable judicial precedents. The Court is mindful that property rights are constitutionally protected under Article 40, but such rights must be exercised within the confines of legality and justice. 2. The Plaintiffs’ case rests squarely on the Sale Agreement dated 18th December, 2002, executed between themselves and Mathias Ibrahim Mlamba, and the subsequent handover of possession. PW - 1 and PW - 2 testified that they purchased the land for valuable consideration, took vacant possession immediately, and have since developed permanent structures including a dwelling house, a school, and a church. Their testimony was consistent and corroborated by PW - 3, the caretaker, who confirmed that he witnessed the sale and that the Plaintiffs entered into occupation without disturbance. The developments on the land, being permanent in nature, are indicative of settled possession and an intention to treat the property as their own. 3. The Defendant denied any sale to Mlamba and insisted that the land was co‑registered in his name and that of his late father, Gideon Morell Okwiya. He relied on the Title Deed issued on 29th August, 2005 and the Sale Agreement of 8th August, 1979 between Tsuma Mweta Maradi and his father. However, DW - 1 admitted under cross ‑ examination that by year 2005 the Plaintiffs were already in occupation and had erected structures on the land. This admission is significant, as it demonstrates that the Plaintiffs’ possession pre‑dated the Defendant’s formal registration and was open, notorious, and continuous. 4. The Sections 24, 25 and 26 ( 1 ) of the Land Registration Act, No. 3 of 2012 provides that registration vests absolute ownership in the registered proprietor, together with all rights and privileges appurtenant thereto. Under the Section 25 further protects such rights from defeat except as provided in the Act. However, Section 26(1)(b) removes protection where a title has been acquired illegally, unprocedurally, or through a corrupt scheme. As Justice Munyao observed in the case:- ***“Alice Chemutai Too – Versus - Nickson Kipkurui Korir & 2 Others [2015] eKLR”***, even an innocent titleholder’s rights are impeachable if the root of title is tainted. The law therefore recognizes that registration alone is not conclusive proof of ownership where the underlying process is flawed. 5. At this juncture, the main issue this Court needs to determine is whether the Plaintiffs are bona fide purchaser for value without notice. Black’s law Dictionary 10th Edition defines a **‘Bona fide Purchaser**’ as follows:- **‘One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.’** 1. On challenging validity of title, the provision Sections 26 (1) (b) of the Land Registration Act, No. 3 of 2012 states that:- **‘The Certificate of Title issued by the Registrar upon registration or to a purchaser of land upon a transfer 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 and the title of that proprietor shall not be subject to challenge, except –** **a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or** **b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.’** 1. In the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others (2015) eKLR”***, the Court of Appeal dealt exhaustively with the issue of bona fide purchaser for value without notice and held that a party cannot invoke indefeasibility of title where the process of acquisition of the title is irregular. Further in the Uganda Court of Appeal Case of ***“Katende – Versus - Haridar & Company Ltd (2008) 2 EA 173”***, the Court defined what amounts to a bona fide purchaser for value thus: ***‘A bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:*** * + - * 1. ***He holds a Certificate of Title*** 2. ***He purchased the Property in good faith;*** 3. ***He has no knowledge of the fraud;*** 4. ***The vendors had apparent valid title;*** 5. ***He purchased without notice of any fraud;*** 6. ***He was not party to any fraud.*** ***A bona fide purchase of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.*** 1. While in the case of ***“Lawrence P Mukiri Mungai, Attorney of Francis Muroki Mwaura – Versus - Attorney General & 4 others (2017) eKLR”***, the Court of Appeal held that a party cannot claim a bona fide purchaser for value where the vendor did not have a valid title 2. The Plaintiffs’ evidence demonstrates that Mlamba was adjudicated and allocated parcel Kwale/Mkongani “A”/909 in the year 1982 by the Land Adjudication Department, Kwale District. PW - 4, the Land Adjudication Officer, produced the Demarcation Book and Adjudication Record confirming that the land was recorded and allocated to Mlamba. This official record lends weight to the Plaintiffs’ claim that they acquired possession from a person in actual and legal occupation, thereby grounding their purchase in both fact and law. 3. The Defendant’s reliance on the year 1979 Sale Agreement and subsequent registration in the year 2005 does not displace the Plaintiffs’ evidence of continuous possession since year 2002. The Court of Appeal in the case:- ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal No. 239 of 2009”*** held that when the root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the instrument to prove legality of acquisition. In the present case, the Defendant has not demonstrated how his registration in 2005 overcame the Plaintiffs’ prior equitable rights and occupation. 4. The Plaintiffs have been in open, peaceful, and uninterrupted occupation for over 14 years at the time of filing suit. Section 17 of the Limitation of Actions Act extinguishes the rights of a registered owner after 12 years of dispossession. The Defendant admitted that he and his father never resided on the land and only engaged the Plaintiffs verbally, without any formal steps to recover possession. Such passive conduct, coupled with the Plaintiffs’ active development of the land, strengthens the Plaintiffs’ claim of lawful acquisition and possession. 5. On the totality of evidence, the Court finds that the Plaintiffs lawfully purchased the suit property from Mathias Ibrahim Mlamba in the year 2002, took possession, and perfected their rights through long, uninterrupted occupation. The Defendant’s title, though formally registered in the year 2005, is impeachable under the provision Section 26(1)(b) of the Land Registration Act, as it was acquired in disregard of the Plaintiffs’ prior equitable rights and continuous possession. The Plaintiffs’ occupation, supported by documentary evidence and corroborated testimony, establishes a superior claim in equity and law. ***ISSUE NO. (b)*** ***Whether the Defendant, as co‑registered proprietor, holds a valid and indefeasible title to the suit property.*** 1. Under this sub‑heading, the Honourable Court examined whether the Defendant’s registration as co‑proprietor of Kwale/Mkongani “A”/909 conferred upon him a valid and indefeasible title. The Defendant anchored his claim on the Sale Agreement dated 8th August, 1979 between his late father, Gideon Morell Okwiya, and Tsuma Mweta Maradi, and on the Title Deed issued on 29th August 2005 in the names of Gideon Morell Okwiya and himself. He contended that registration under the Land Registration Act vested absolute ownership in him, together with all rights and privileges appurtenant thereto, and that such registration was sufficient to defeat the Plaintiffs’ claim. 2. The Sections 24, 25 & 26 of the Land Registration Act, 2012 indeed provides that registration vests absolute ownership in the registered proprietor. Section 25 further protects such rights from defeat except as provided in the Act. Section 26 (1) establishes that a Certificate of Title is prima facie evidence of ownership and is indefeasible except on grounds of fraud, misrepresentation, or where the title was acquired illegally, unprocedurally, or through a corrupt scheme. The statutory framework therefore recognizes the sanctity of title but also provides clear exceptions where the root of title is tainted. 3. The Court observes that the principle of indefeasibility of title under the provision Section 26 (1) of the Land Registration Act, 2012 protects registered proprietors only where the acquisition of title is free from fraud, illegality, or procedural impropriety. The law is clear that indefeasibility is not absolute; it is conditional upon the integrity of the process by which the title was obtained. Where the root of title is defective, subsequent transfers cannot cure the defect. The doctrine of bona fide purchaser for value without notice, often invoked to shield innocent purchasers, does not apply where the original acquisition was unlawful. A void title cannot be the foundation of a valid transfer, and any subsequent transferee inherits the taint of illegality. 4. Jurisprudence has consistently emphasized that registration alone is not conclusive proof of ownership where the root of title is challenged. In case of:- ***“Munyu Maina – Versus - Hiram Gathiha Maina (Supra)”***, the Court of Appeal held that when the root of title is under attack, it is not sufficient to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the instrument to demonstrate legality of acquisition. Similarly, in ***“Arthi Highway Developers Ltd (Supra)”***, the Court underscored that indefeasibility of title is lost where the process of acquisition is marred by fraud or illegality. 5. In the present case, the Defendant admitted under cross ‑ examination that by the time the title was issued in the year 2005, the Plaintiffs were already in occupation and had erected structures on the land. He further admitted that neither he nor his relatives resided on the land, and that all engagements with the Plaintiffs were verbal. This admission undermines the assertion of indefeasibility, as it demonstrates that the Defendant’s registration was not accompanied by actual possession or control of the property, and that the Plaintiffs’ occupation was open and notorious. 6. Moreover, the Plaintiffs produced evidence through PW - 4, the Land Adjudication Officer, that the parcel had been adjudicated and allocated to Mathias Ibrahim Mlamba in the year 1982. This allocation formed the basis of the Plaintiffs’ purchase in the year 2002. The Defendant did not rebut this evidence with cogent proof of how his registration in the year 2005 displaced Mlamba’s adjudicated rights. The Court notes that adjudication records are official instruments of government and carry significant evidentiary weight in establishing lawful allocation. 7. The Court is persuaded that while the Defendant’s title deed is prima facie evidence of ownership, it is impeachable under Section 26(1)(b) of the Land Registration Act, as the registration was procured in disregard of the Plaintiffs’ prior equitable rights and continuous possession. The Defendant has not demonstrated that his title was acquired formally, legally, and free from encumbrances. His reliance on registration alone, without addressing the Plaintiffs’ occupation and Mlamba’s adjudicated rights, leaves his claim vulnerable. 8. Accordingly, the Court finds that the Defendant’s registration as Co ‑ proprietor in the year 2005 did not confer a valid and indefeasible title. The Plaintiffs’ prior purchase and occupation, coupled with the adjudication record in favour of Mlamba, impeach the Defendant’s claim to indefeasibility. The Defendant’s title, though formally registered, cannot withstand scrutiny under the law when weighed against the Plaintiffs’ equitable rights and the statutory exceptions to indefeasibility. ***ISSUE No. (c) Whether the Plaintiffs’ occupation of the suit property amounts to trespass or whether their claim of land adverse possession has crystallized by effluxion of time*** 1. Under this sub‑heading, the Honourable Court examined whether the Plaintiffs’ continued occupation of Kwale/Mkongani “A”/909 constituted unlawful trespass, or whether by operation of law their claim of adverse possession had matured. The Defendant’s case was that the Plaintiffs were squatters who had erected illegal structures on the land without his consent, and that he had verbally requested them to vacate. He sought a permanent injunction, damages for trespass, and costs. The Defendant emphasized that he was the co‑registered proprietor and that the Plaintiffs’ entry was without authority, thereby amounting to trespass. 2. The Plaintiffs, on the other hand, testified that they lawfully purchased the land from Mathias Ibrahim Mlamba in the year 2002, took possession immediately, and had since developed permanent structures including a dwelling house, a school, and a church. They argued that their occupation had been continuous, peaceful, and uninterrupted for over 14 years at the time of filing suit, thereby crystallizing into ownership by adverse possession under the provision Section 17 of the Limitation of Actions Act, Cap. 22. 3. The law on adverse possession is settled. The Section 7 of the Limitation of Actions Act provides that actions to recover land may not be brought after the expiry of twelve years from the date the right of action accrued. Section 17 extinguishes the title of the registered owner once the limitation period lapses. The jurisprudence in the case of:- ***“Kweyu – Versus - Omuto [1990] KLR”*** and ***“Mbira – Versus - Gachuhi [2002] 1 E.A. 137”*** affirms that for adverse possession to succeed, the claimant must demonstrate open, continuous, and exclusive occupation without the consent of the registered owner, for a period exceeding twelve years. The occupation must be notorious, adverse to the interests of the registered owner, and exercised as if the occupier were the true owner. 4. In the present case, DW - 1 admitted under cross‑examination that by the year 2005, when the title deed was issued, the Plaintiffs were already in occupation and had erected structures. He further admitted that neither he nor his relatives resided on the land, and that all engagements with the Plaintiffs were verbal, without any formal steps to recover possession. This admission is critical, as it demonstrates that the Plaintiffs’ occupation was open and notorious, and that the Defendant acquiesced to their presence for a prolonged period. 5. The Plaintiffs’ evidence showed that they had been in possession since the year 2002, and by the time of filing suit in the year 2016, they had occupied the land for over 14 years. Their possession was continuous, peaceful, and uninterrupted. The Defendant’s verbal requests, unsupported by any formal legal action, did not amount to effective interruption of time. The Court of Appeal in ***“Githu – Versus - Ndeete [1984] KLR 776”*** held that mere entry or verbal protest does not interrupt adverse possession; only filing of suit or taking effective steps to recover possession does. The Defendant’s failure to institute proceedings or issue formal notices of eviction meant that time continued to run against him. 6. The Defendant’s claim of trespass therefore collapses in the face of the Plaintiffs’ long and uninterrupted occupation. Trespass presupposes unlawful entry, but once the statutory period lapses, the registered owner’s rights are extinguished, and the occupier’s rights crystallize into ownership. The Plaintiffs’ occupation, though initially without the Defendant’s consent, ripened into adverse possession by effluxion of time. 7. The Court is fortified by the principle that adverse possession operates as a shield against eviction and as a sword to claim ownership. The Plaintiffs demonstrated that they had treated the land as their own, developed it substantially, and excluded the Defendant from possession. Their conduct satisfied the requirements of adverse possession, and the Defendant’s passive stance only reinforced their claim. 8. Accordingly, the Court finds that the Plaintiffs’ occupation of the suit property does not amount to trespass. Their claim of land adverse possession has crystallized, extinguishing the Defendant’s rights under the provision of Sections 7, 13, 17 & 38 of the Limitation of Actions Act. The Plaintiffs are therefore entitled to be registered as proprietors of Kwale/Mkongani “A”/909. ***ISSUE No. (d) Whether the Defendant’s Counter - Claim for permanent injunction, damages, and costs is sustainable in law.*** 1. Under this sub‑heading, the Honourable Court examined whether the Defendant’s Counter - Claim seeking a permanent injunction, damages for trespass, and costs could stand in light of the evidence and applicable law. 2. The Defendant pleaded that the Plaintiffs were trespassers who had erected illegal structures on the land without his consent, and that he had suffered loss of use, stress, and anguish since the year 2003. He sought injunctive relief, damages, and costs. The particulars of loss included alleged illegal construction of structures and unlawful retention of the land, which he claimed deprived him of enjoyment and use of the property. 3. The Court is guided by Section 26 (1)(b) of the Land Registration Act, No. 6 of 2012, which provides that a certificate of title may be challenged where it has been acquired illegally, unprocedurally, or through a corrupt scheme. The Plaintiffs have successfully demonstrated that the title held by the Defendant fall squarely within this category. The jurisprudence in ***“Dina Management Ltd – Versus - County Government of Mombasa & 5 others (Supra)”*** and ***“Njiru – Versus - Orkesi & 5 others (Supra)”*** affirms that titles founded on illegality cannot be protected under Article 40 of the Constitution of Kenya, 2010. Article 40 (6) expressly excludes protection for property unlawfully acquired, and the present case is a textbook example of such unlawful acquisition. 4. The Court has already found that the Plaintiffs lawfully purchased the suit property from Mathias Ibrahim Mlamba in the year 2002, took possession, and have been in continuous, peaceful, and uninterrupted occupation for over 14 years. Their rights have crystallized by effluxion of time under the provision Section 17 of the Limitation of Actions Act, Cap. 22, extinguishing the Defendant’s entitlement. This extinguishment of rights means that the Defendant cannot now assert claims of trespass or loss of use against parties whose possession has matured into ownership. 5. Trespass presupposes unlawful entry upon land in possession of another. Once the statutory period lapses and adverse possession is established, the registered owner’s rights are extinguished, and the occupier’s possession is deemed lawful. The Defendant’s claim of trespass therefore collapses, as the Plaintiffs’ occupation has ripened into ownership. The jurisprudence in ***“Mbira – Versus - Gachuhi (Supra)”*** reinforces that adverse possession transforms what might initially appear as trespass into lawful possession once the statutory threshold is met. 6. The Defendant’s claim for damages is equally unsustainable. Damages for trespass are compensatory in nature, intended to redress unlawful interference with proprietary rights. Where the Plaintiffs’ possession has been adjudged lawful, no basis exists for an award of damages. The Defendant’s own admissions that he never resided on the land, never took effective steps to recover possession, and only engaged the Plaintiffs verbally, further weaken his claim. His passive conduct over a prolonged period underscores acquiescence and undermines any assertion of loss or injury. 7. As to the prayer for a permanent injunction, such relief is granted to protect proprietary rights from unlawful interference. The Defendant has failed to demonstrate subsisting proprietary rights capable of protection, given that his title has been impeached under the provision of Section 26 (1)(b) of the Land Registration Act, No. 3 of 2012 and extinguished under the Limitation of Actions Act. The Plaintiffs, not the Defendant, are entitled to protection of their possession. The equitable maxim that ***“equity aids the vigilant, not the indolent”*** applies squarely here; the Defendant’s inaction over many years disentitles him to equitable relief. 8. The Court is fortified by the principle in ***“Kweyu – Versus - Omuto (Supra)”***, where it was held that adverse possession operates to extinguish the rights of the registered owner and vest them in the occupier. Once adverse possession is established, any Counter - Claim premised on trespass or damages must fail. The Defendant’s prayers, being predicated on rights that no longer subsist, cannot be sustained. 9. Accordingly, the Court finds that the Defendant’s Counter - Claim for permanent injunction, damages, and costs were not sustainable in law. The prayers sought therein are dismissed in their entirety. ***ISSUE No. (e) Who should bear the costs of the suit*** 1. Under this sub‑heading, the Honourable Court considered the question of costs. It’s now well established that the issue of Costs is at the discretion of Court. Costs means any award that a party is as the conclusion of any legal action, proceedings and process of any litigation. The Proviso of the provision of Section 27(1) of Civil Procedure Act provides that costs follow the events. 2. By events it means the result such a legal action, process and/or proceedings. (See the Supreme Court case of ***“Jasbir Rai Singh Rai – Versus Tarchalon Singh (2014) eKLR;*** and the case ***Rose Mary Wambui Munene – Versus – Ihururu Dairies Co – Operative Limited (2014) eKLR, Kenya Sugar Board – Versus – Ndungu Gathini (2013) eKLR;*** and ***Cecilia Nyayo – Versus Barclays Bank of Kenya Limited (2016) eKLR”*** where Courts held that:- ***“The basic rule on attribution of costs is that costs follow the event……..it is well recognised that the principles costs follow the event is not be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting of defending the case”***. 1. In the present case, the Plaintiffs have succeeded in establishing that they lawfully purchased the suit property from Mathias Ibrahim Mlamba, took possession, and perfected their rights through long, uninterrupted occupation. The Court has further found that the Defendant’s title, though formally registered, was impeachable under the provision of Section 26(1)(b) of the Land Registration Act, 2012, and that his Counterclaim for injunction, damages, and costs was unsustainable. 2. The Defendant’s insistence on trespass and damages, despite clear evidence of the Plaintiffs’ long occupation, compelled the Plaintiffs to defend their rights through litigation. The Plaintiffs have therefore been put to unnecessary expense in prosecuting their claim and defending against the Counterclaim. 3. The Court is satisfied that the Plaintiffs are the successful parties in this litigation. No special circumstances have been demonstrated to warrant departure from the general rule. Equity and fairness dictate that the Defendant, having failed in both his Defence and Counter - Claim, should bear the costs of the suit. 4. Accordingly, the Court finds that the Defendant shall bear the costs of the suit, together with the costs of the Counter - Claim 5. **Conclusion and disposition** 6. Ultimately, in conclusion, upon conducting an elaborate analysis of the framed issues herein, this Honourable Court based on the principles of Preponderance of Probabilities and balance of convenience, the Plaintiffs have successfully established their case against the Defendant. For avoidance of doubt, I specifically make the following orders: – 7. **THAT Judgment be and is hereby entered in favour of the Plaintiffs in accordance with the Plaint dated 9th December 2016.** 8. **THAT a declaration be and is hereby made that the Plaintiffs lawfully purchased and acquired possession of the suit property Kwale/Mkongani “A”/909 from Mathias Ibrahim Mlamba on 18th December, 2002, and that their rights thereto have crystallized by effluxion of time under Section 17 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.** 9. **THAT a declaration be and is hereby made that the Defendant’s registration as Co ‑ Proprietor of the suit property on 29th August, 2005 did not confer a valid and indefeasible title, rights and interests, it having been impeachable under the provision of Section 26 (1)(b) of the Land Registration Act, No. 3 of 2012.** 10. **THAT the Land Registrar, Kwale Land Registry, do and are hereby directed to rectify the land register by cancelling the entries relating to Kwale/Mkongani “A”/909 made in favour of the Defendant and to register the Plaintiffs as proprietors thereof.** 11. **THAT a vesting order be and is hereby issued directing that the suit property Kwale/Mkongani “A”/909 be registered in the names of the Plaintiffs, to be held and enjoyed peacefully and without interference.** 12. **THAT a permanent injunction be and is hereby issued restraining the Defendant, whether by himself, his agents, servants, or assigns, from alienating, transferring, charging, leasing, sub - dividing, disposing of, wasting, entering or remaining upon, or in any manner interfering with the Plaintiffs’ quiet possession and enjoyment of the suit property.** 13. **THAT the Defendant’s Counter - Claim for permanent injunction, damages, and costs is hereby dismissed in its entirety, it being unsustainable in law.** 14. **THAT the costs of this suit and of the Counter - Claim shall be awarded to the Plaintiffs having succeeded in their claim to be borne by the Defendant.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………28TH .…..DAY OF……JULY………….. 2026.** **…………..……………………..…………………….** **HON. MR. JUSTICE L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Judgment delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant; 2. Mr. Chibanda Advocate for the Plaintiffs; and 3. M/s. Langat Advocates for the Defendant.