https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4320

Mambo & 2 others (Suing as the administrator of Mwinyi Juma Bugu) v Hawkins & another (Environment and Land Case 247 of 2021) [2026] KEELC 4320 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4320 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case 247 of 2021 LL Naikuni, J July 9, 2026 IN THE MATTER OF: L.R NO.5004; KWALE/DIANI BEACH PLOT NOS 283 & 284 AND MSA/M.S/DIANI BEACH BLOCK 102,103,104 & 993 AND IN THE MATTER OF: AN APPLICATION FOR DECLARATION THAT THE APPLICANTS/PLAINTIFFS HAVE OBTAINED OWNERSHIP OF THE ABOVE SAID PARCELS OF LAND BY WAY OF ADVERSE POSSESSION Between Mohamed Mambo 1st Plaintiff Juma Kimbirwa 2nd Plaintiff Mahmoud Mwinyi Mwabugu 3rd Plaintiff Suing as the administrator of Mwinyi Juma Bugu and Richard Livingstone Hawkins 1st Defendant John Edward Leslie 2nd Defendant Judgment I. Preliminaries 1.The Judgement of this Honourable Court pertains to the civil suit instituted by Halima Mohamed Mambo, Kadiri Juma Kimbirwa, Nasoro Juma Mwawali, and Mahmoud Mwinyi Mwabugu (suing as administrators of the estates of the original Plaintiffs), the Plaintiffs herein. It was by way of Further Amended Originating Summons dated 17th March, 2025 under the provision of Sections 7, 13, and 38 of the Limitation of Actions Act, Cap. 22 and Section 7 (d) of the Land Act No. 6 of 2012 of the Laws of Kenya seeking to be declared the legal and absolute proprietors of all that parcel of land known as Land Reference No. 5004/Kwale/Diani Beach Plot Nos. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993 (Hereinafter referred to as “The Suit Land”) by way of land adverse possession. 2.Upon filing of the Originating Summons, the Defendants, though duly served, entered appearance and filed responses contesting the Plaintiffs’ claim. From the very onset, and at this juncture, it is instructive to take notice on a few important fundamental aspects on this case. Firstly, this is a case of Re – trial. From the record this case has protracted before this Honourable Court for over twenty ( 20 ) years now! A typical example of a case making a total mockery and contrast to the legal terrain and Maxim enshrined in the provision of Article 159 ( 2 ) ( b) of “Justice Delayed, Is Justice Denied” and “Litigation Must Come to an Conclusion”!. Fundamentally, it was marred by the conventional issues of court misplacement, reconstruction of files, numerous interlocutory applications, adjournments by parties, transfer of matter from the High Court to the Environment Court upon its establishment among other related reasons. In the course of time, it was handled by numerous Judges including Justices Maraga (CJ Emeritus CJ), J. K Sergon, F. Azangalala, M. A Odero, J. B Ojwang, S. K. Mukunya, C. Yano, A. Dena among others and now L. Naikuni J (with an exclusion of those at the Court of Appeal). 3.Initially, it was instituted sometimes in the year 2006, the Plaintiffs herein filed the suit by way of Originating Summons before the High Court at Mombasa. Upon With the leave of Court granted on 17th October, 2008, vide the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010, they served the Defendants/Respondents with the Summons to Enter Appearance by substituted means through publication of an advertisement in one of the local dailies with wide national circulation. Taking that there was no responses nor appearance entered, on 28th September, 2009 Ex – Parte Judgement in default was entered in favour of the Plaintiffs. However, the Defendants moved Court and on 5th March, 2010 they were successful in setting the said Ex – Parte Judgement aside vide the provision of Order 10 Rule 11 of the Civil Procedure Rules, 2010 whereby an order was made for the Re – Trial. Upon the promulgation of the Constitution of Kenya, 2010, and pursuant to the provision of Article 162 ( b ) the Environment & Land Court was established and hence the matter was moved to the ELC Kwale. That is the basis of this case. 4.Secondly, by the consensus of the parties that a Site Visit (“Locus in Quo”) was conducted pursuant to the provisions of Orders 18 Rule 11 and 40 Rule 10 of the Civil Procedure Rules, 2010 and the report shared accordingly. It forms part of this Judgement for ease of reference. 5.Thirdly, again by consent, the parties voluntarily opted to have the matter proceed on by way of filing of submissions rather than the conventional way of adducing “Viva Voce” evidence. This was all undertaken in accordance with the provisions of Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010, and guided by the principles of fair hearing under Articles 25 ( c ), 50 ( 1 ) and ( 2 ) and 159 ( 1 ) and ( 2 ) of the Constitution of Kenya, 2010. II. Court directions before the hearing 6.Upon confirming that the Plaintiff had complied with Order 11 of the Civil Procedure Rules, 2010, the Honourable ELC Court directed that the matter be set down for hearing. The Court further ordered that the Originating Summons be converted into a Plaint, with the Applicant and Respondent redesignated as Plaintiff and Defendant respectively, and the annexures to the Supporting Affidavit treated as the Plaintiff’s List of Documents. 7.Subsequently, and as already indicated, the Honourable Court directed that the matter proceeds on by way of submissions in accordance with Order 37 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010, and granted leave to the Plaintiff to adduce oral testimony supported by documentary exhibits. III. The Plaintiffs/Applicants case 8.The Applicant sought the following orders:-a.Whether the Plaintiffs are entitled to be declared as proprietors of L.R NO. 5004/ KWALE/DIANI BEACH PLOT NOS 283 & 284 and MSA/M.S/DIANI BEACH BLOCK/102,103,104 and 993 which they have acquired by adverse possession after staying and/or residing in the plots for a period exceeding twelve (12) years and until commencement of this suit.b.Whether the Plaintiffs are entitled to be registered of L.R NO. 5004/KWALE/DIANI BEACH PLOT NOS 283 & 284 and MSA/M.S/DIANI BEACH BLOCK/102, 103, 104 and 993 and be issued with Certificates of titles in that respect.c.Whether the Plaintiffs are entitled to the Costs of this suit. 9.The Original Summons was verified by an affidavit sworn by the 4th Plaintiff, Mahmoud Mwinyi Mwabugu verifying the contents of the summons to be true and correct. DIVISION - IV. Submissions 10.Immediately after the closure of the Plaintiff’s case the Honorable Court directed the Further Amended Originating summons to be canvassed the originating summons dated 17th March, 2025 through written submissions. Thereafter the Honorable Court reserved a date for delivery of Judgement on 9th July, 2026 accordingly. 11.On 7th May, 2026 parties were accorded an opportunity to highlight their submissions. Indeed, the Learned Counsels Mr. Siminyu for the 4th Plaintiff and M/s. Jullu Advocate for the 3rd Defendant herein duly executed their mandate with devotion, dedication and diligence befitting high degree of professionalism. A. The Written Submissions by the Plaintiffs 12.The Plaintiffs through the Law firm of Messrs. Alinaitwe, Osodo Advocates LLP filed their written submissions dated 17th February, 2026. Mr. Osodo Advocate submitted that pursuant to the Courts directions, the Plaintiffs hereby made their submissions in support of the originating summons and seek for determination of the afore - stated issues before court. 13.The Learned Counsel submitted that they had taken upon themselves to give a brief history of the court in order to explain the reason as to why the matter was initially before the Mombasa High Court as seen in the pleadings herein. 14.The originating summons instituting this suit were first filed before the High Court in Mombasa in the year 2006 by the Law firm of Manwa Mabeya & Co Advocates. This was way before the promulgation of the Constitution, 2010 and before the ELC court became operational.The [ELC] Environment and Land Court in Kenya was established by an Act of Parliament on August 30, 2011, to handle land and environmental disputes and officially began its operations in October, 2012, following the appointment of its first Judges in the year 2012. Pursuant to that, the ELC Court in the County of Kwale commenced its operations in the year 2021 and thus this suit was transferred to this court. 15.It was eminent for the court to be informed that the original pleadings instituting this suit had been missing for a long time and had in fact never been traced. Thus, this file was reconstructed vide an application made on 10th April, 2014. It should be noted that the proceedings of the court could only be traced from around the year 2015. However, the records from the years 2006 - 2013 to 2014 were missing. The Plaintiffs would give a brief history of the facts leading to what was before court for ease of the court in getting the litigation history of this originating summons. 16.The Learned Counsel submitted that they were the rightful owners of the suit properties as had been stated in the originating summons and supported by an affidavit sworn by Mohamed Mambo one of the original Plaintiffs before his death, and with the authority of the other Plaintiffs. This was due to the following reasons as were captured in the affidavit that:-a.The subject matter was the Plaintiffs ancestral home and which properties they had been in occupation thereof over the years without the authority of the registered ownersb.The Plaintiffs were born on the suit properties; They had even buried their parents on the properties and their occupation of it had been continuously open, adequate and uninterrupted for a period exceeding 12 years until commencement of the suit by them.c.The Defendants had up to the time the suit was commenced in court not taken any developments on the properties or taken possession thereof.d.For the above reasons, the Plaintiffs humbly submitted that they were entitled to the suit properties by way of adverse possession. 17.In placing the issues surrounding the instant suit into context, the Learned Counsel brought the attention of the Court that the suit herein was initiated by the originating summons of 31st August, 2006 and amended on 13th October, 2008. On 17th October, 2008, Judge D. K Maraga [Chief Justice Emeritus] ordered that service of the summons be effected by way of substituted service by advertisement. Service was done by notice published in one of the local dailies – “The Daily Nation” newspaper of wide national circulation as per the advert placed on the said paper on 28th April, 2009. 18.The Counsel informed Court that the matter was scheduled for hearing. Indeed, it proceeded accordingly. PW - 1 MOHAMED MAMBO testified that he had lived on the suit property MSA/MS/Diani Beach Block 102 for the past 20 years. The suit property was registered in the name of Orbit Developers Limited. PW - 2 JUMA SAIDI BUGII testified that he had been on the suit property MSA/MS/Diani Beach Block 103 for the past 25 years. That the property was owned by Orbit Developers Limited. PW - 3 JUMA MOHAMED KEKE aged 72 years testified that he had lived on the suit property MSA/MS/Diani Beach Block 104 for over 40 years having been born thereon. PW - 4 JUMA SAIDI KIMBIRWA testified that he had been on Plot 993 for over 18 years. PW – 5, MOHAMED JEMBE a District Land Registrar testified that he had record indicating ownership of the suit properties as follows:-a.Plot No. MSA/MAS/Diani Beach Block 102 to Orbit Developers Limited.b.Plot No. MSA/MS/Diani Beach Block 103 to Orbit Developers Limited.c.Plot No. MSA/MS/Diani Beach Block 104 to Michael Lewis.d.Plot No. 993 to Sterling Investments Limited. 19.The Learned Counsel informed Court that the Plaintiffs case was then closed. On 28th September, 2009, “Ex - Parte” Judgement was entered in favour of the Plaintiff and in against the Defendants therein. However, on 5th March, 2010, the Ex - Parte Judgement was set aside vide a Ruling of Court mainly on the grounds of service upon the Defendants. The court in allowing the application to set aside stated that the disputed service was irregular. That the summons as placed in the daily newspaper had failed to indicate the time frame within which the Defendant was required to enter appearance. Thus, the summons were defective. It should however be noted that an advertisement was none the less placed and seen by the Defendants. Subsequently, the suit was at some point in year 2018 dismissed for want of prosecution but it was reinstated in the year 2022. 20.Further, the Learned Counsel asserted that it was against the above backdrop that the Plaintiffs made the claim for land adverse possession. They argued that a case had been made for grant of the adverse possession orders sought and one should not be deprived of enjoying the same purely because one did not possess the financial might of the other. In the suit they were focusing on the land parcels No. Kwale/Diani Beach Block/102 and 103 which were awarded to the Plaintiff by adverse possession and which the 3rd Defendant was also claiming. The other land parcels had since been dealt with and some in in other active cases in this very Court. 21.The Learned Counsel contended that the doctrine of adverse possession in Kenya is concretized in the provision of Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22. 22.The threshold for a claim of adverse possession was laid out in the case of “Kimani Ruchine – Versus - Swift Rutherford & Co Ltd [1980] KLR” that:“The Plaintiffs have to prove that they have used this land which they claim, as of right: nec vi, nec clam, nec precario... The possession must be continuous. It must not be broken for any temporary purpose or by any endeavors to interrupt it or by any recurrent consideration.” 23.In the case of:- “Titus Kasuve – Versus - Mwaani Investment Ltd & Others 2004 1 KLR 184” the Court of Appeal stated as follows with regard to what a party claiming land by way of adverse possession must prove:-“And in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition -Wanje. V. Saikwa (No 2) 1984 KLR 284. A title by adverse possession can be acquired under Limitation of Actions Act for a part of the land and the mere change of ownership of the land which is occupied by another under adverse possession does not intemupt such person's adverse possession -(see Githu.V. Ndeete 1984 KLR 776.” 24.In the case of “Amos Weru Murigu – Versus - Marata Wangari Kambi & Another, High Court of Kenya at Nairobi (Civil Suit No. 33 of 2002[O.S]” this court held that:“...where a person trespasses on the land of another with the knowledge of the latter who does not assert his right to the title to the land by evicting the trespasser or by suing him or her in court for eviction or ejectment but instead lets the trespasser openly occupy the land for a continuous and uninterrupted period of not less than twelve (12) years, the trespasser is entitled to apply to the High Court under section 38(supra) to be registered as the proprietor of the land. This is what the doctrine of adverse possession means. Where the period of 12 years is not continuous or is interrupted, the period of adverse possession is broken and must start all over again. But where one trespasser removes another trespasser who is in adverse possession to the owner and continues to occupy the land, the period of adverse possession is not broken and the second trespasser is entitled to combine the period of trespass of the first trespasser to his own. The land claimed by adverse possession need not be all the land comprised in the title; it may be a portion of it providing that the portion claimed is demarcated well enough to be identifiable. And as regards assertion of title, it is not enough for a proprietor of the land to merely write to the trespasser. A letter by the proprietor, even if it be through an advocate or the chief of the area does not amount to assertion of title in law and cannot therefore interrupt the passage of time for the purpose of computing the period of adverse possession. For there to be interruption, the proprietor must evict or eject the trespasser but because eviction is not always possible without breach of peace, institution of suit against the trespasser does interrupt and stop the time from running. For these propositions of the law, see GAtimu Kinguru V. Mujya Gathangi (1976) Klr 253; Hosea V. Njiru [1974] E.A. 526; SOspeter Wanyoike V.waithaka Kahiri (1979) KLR 236; Wanje V. Saikwa (NO.2)(1984) KLR 284; Githu V. Ndeete (1984) KLR 776; Nguyai V.ngunayu(1984)KLR 606; Kisee Maweu V. Kiu Ranching (1982-88) IKAP 746...” 25.According to the Learned Counsel, it was their evidence before court that by the time the court set aside the ex parte judgement of the court granting ownership of the suit properties herein to the Plaintiffs, their rights over the suit property had already crystallized. The Plaintiffs have been in occupation of the suit property since time immemorial, during the site visit conducted by this court on 28th February, 2025, the court noted in its report that from a historical background the suit properties were ancestral land as there was a presence of indigenous trees as was confirmed by the deceased Plaintiffs in their testimony. They asked the court to be guided by the testimony of PW - 3 JUMA KEKE who testified that he was 72 years old and had been on the suit property for over 40 years. If this is the case, then by the time the suit was being brought before court in the year 2006, the period of 12 years had already expired. 26.Time could not start running as from the year 2006 because from then, the 3rd Defendant became alive to the fact that an adverse possession suit had been filed and immediately started constructions on the suit property in a bid to circumvent justice. This was affirmed during the site visit when the team involved in the same was informed by the director of the 3rd Defendant that the concrete perimeter wall and the askari house were constructed in the year 2006. 27.If the Plaintiffs had the financial might of the 3rd Defendant, they would have secured the property once they got the judgement in their favour, however, the same was not possible and the 3rd Defendant, after the demise of the original Plaintiffs; took advantage of the situation to build a brick wall surrounding the suit properties and placed a guard to keep off any person unwanted by the said 3rd Defendant. This also enable the 3rd Defendant to do whatever altercations he wanted to the character of the properties; however, one thing that is difficult to extinguish from a place is its vegetation hence the visible presence of indigenous trees thereon. 28.According to the Learned Counsel, it should also be noted that the construction of the guard house, the goat and chicken shed as seen from the site visit were at a corner of the suit property and away from the beach, this insinuates the likely presence of a grave site thereon as grave sites are ordinarily chosen to be at a separate isolated corner of a property and the fact that that is the location where the 3rd Defendant conveniently choose to put up his animal shed and guard house is highly suspicious and calculative all this during the time he was putting up a perimeter wall. 29.It was their humble submission that there was a very high possibility that the 3rd Defendant undertook construction on the graves of the fathers of the original Plaintiffs so as to conceal any signs of their existence therein. There was also noticed buildings, described as high-end cottages, by the director of the 3rd Defendant, which were under construction on the property; and a look at the same shows that the said buildings were not constructed at a far off, in fact, it was established the there was a court order issued on the 6th February, 2024 in this very matter stopping any further construction on the property. Pictures were also placed on record when obtaining the court order of 6th February, 2024 that show the structures seen during the site visit were incomplete at the time of the time of the court order of 6th February, 2024 yet when the Court went for the site visit, it was evident that some structures were painted and finishing was being done on the inside, a clear sign and confirmation that the 3rd Defendant was despite the court order of 6th February, 2024 barring him from any further developments, continued to develop with a view of changing the image of the area to favour its’ claim for ownership. 30.The Learned Counsel submitted that the 3rd Defendant in an application dated 14th February, 2024 where they sought to be compensated for works they were doing on the land parcels No. Kwale/Diani Beach Block/102 and 103. The Court noted that by them making the said application, they were confirming that they were breaching the court order stopping them from any further development on the suit land parcels. This confirms that despite all factors, the 3rd Defendant was well aware of the ongoing court case but choose on its' own volition to continue development on the suit properties despite a court order and despite not finalizing this Court case. For the 3rd Defendant to claim compensation for an act that it did deliberately known that the outcome of court is not defined, illustrates and confirms the depths the 3rd Defendant is willing to go to create an image that it is the rightful owner of the property and that it is utilizing the same. 31.The Defendants would perhaps argue that the ownership of the Plaintiffs was interrupted during the change of ownership of the land from Kiambu Coffee Estate to Paradise Beach Resort in the year 1980.On this they relied in the case of “Douglas Mbugua Mungai – Versus - Harrison Munyi [2019] eKLR” where this Court held that:“The issue in the Githu case was whether the mere change of ownership of land that is occupied by another under adverse possession would interrupt such person's adverse possessions. And the answer was correct that where the person in possession has already begun and is in the course of acquiring rights under section 7 of the Limitation of Actions Act, those rights are overriding interests by virtue of Section 30 (f) of the RLA, to which the new registered purchaser's title will be subject. "Further, in Titus Kigoro Munyi – Versus - Peter Mburu Kimani [2015] eKLR, this Court observed that: “It must be noted that under Section 7 of the Limitation of Actions Act, the law relating to prescription affects not only present holders of the title but their predecessors.” 32.The Learned Counsel lastly wished to submit that the mandatory provisions of Order 37 Rule 7of the Civil Procedure Rules requires that an application for adverse possession be accompanied with a title deed extract. This requirement has been met by the Plaintiffs herein. They urged the court to find that a case has been made for grant of the suit properties to the Plaintiffs by way of adverse possession. It should be noted that the Plaintiffs who commence this suit all passed away soon after they were granted proper title by Court through adverse possession. B. The Written Submissions by the 4 th Plaintiff 33.The 4th Plaintiff through the firm of Messrs. Oduor Siminyu & Co Advocates filed their written submissions dated 17th February, 2026. Mr. Siminyu Advocate commenced his submissions by stating that the 4th Plaintiff made this further submission in addition to the earlier submission made in 2009. According to the Learned Counsel, the 4th Plaintiff had proved his case on a balance of probability and he is therefore available to the prayers sought in the Further Amended Originating Summons dated 17th March, 2025. 34.On the Plaintiffs’ case, the Learned Counsel averred that the 4th Plaintiff came to this court seeking adverse possession as per his testimony on 30th June, 2009 over Plot No. 103 and having stayed on the said plot for over 25 years. It was his evidence that the occupation had been continuous, peaceful, uninterrupted and open. This is the place he called home. The 4th Plaintiff confirmed the title upon which they sued is registered in the name of ORBIT DEVELOPER LTD the 3rd Defendant herein.The court, based on the evidence, testimony and submissions filed delivered a Judgement on the 28th September, 2009 in favour of the 4th Plaintiff. Judgement was however, set aside by the court on an application by the 3rd Defendant. 35.On the 3rd Defendant’s case, the Learned Counsel submitted that upon setting aside the court's Judgement, the 3rd Defendant was given a lifeline to defend this case. Despite of being granted the said opportunity, The 3rd Defendant despite made an application to have the matter proceed by way of filing documents, affidavits and submissions in lieu of adducing of “Viva Voce” evidence. The step taken by the 3rd Defendant could not be gainsaid to the 4th Plaintiff’s case. This being a land matter with very highly contested facts, the 3rd Defendant was bound to have oral evidence taken. The evidence of the 4th Plaintiff remains unchallenged. To buttress the point, the 3rd Defendant made the application to set aside the judgement in anticipation of being heard and cross-examine the 4th Plaintiff. The application by the 3rd Defendant by way of Chamber Summons never sought for setting aside proceedings. 36.The Applicants substantive prayer was:-“ 3.THAT the Judgement of 28th September, 2009 and all consequential orders be set aside” 37.The Honourable court on 5th March, 2010 delivered a ruling in respect of that Chamber Summons and the Ruling was to the effect that:-i.“THAT the Judgement delivered by this Honourable court on 28th September, 2009 and all consequential orders be and are hereby set aside.ii.THAT each party shall bear it's own costs of this Application.” 38.From the foregoing, there was no order setting aside proceedings or any subsequent order to that effect was ever made. The court of Appeal in the case of:- “Owino & Another – Versus - Khadudu & 2 others (Civil Appeal No.16 OF 2016) (2023) KECA 568 (KLR)” had this to say;-“Proceeding by way of oral evidence was ideal in this matter particularly because the facts herein were highly contested. It was important to call viva voce evidence so that the strength of that evidence could be tested through cross-examining witnesses in the court’s endeavor to unravel the contentious issues.” 39.The proceedings having not been set aside, the testimony and evidence by the 4th Plaintiff remains unchallenged and un-controverted. 40.The court in “Republic – Versus - Kenya Power & Lightning Company Limited & Another (2013) eKLR” Korir J. expressed himself as follows;-“.........it is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrates. It is not lost that procedural fairness is deeply ingrained in our administration of justice system”. 41.The Learned Counsel submitted that the 4th Plaintiff was denied this opportunity to put to test the 3rd Defendant evidence. The 3rd Defendant denied himself an opportunity to cross-examine the 4th Plaintiff and test his evidence. The court on 5th March, 2010 duly exercised its discretion as per the 3rd Defendant's application and set aside only the judgement. There was and has never been any order of this Honourable court setting aside the proceedings. 42.On the issues for determination, the Learned Counsel relied on the following:-a.Whether the 4th Plaintiff established his claim for adverse possession?b.What is the effect of the Defendants failure to call witnesses on the Plaintiff claim?c.Who should bear the costs? 43.On whether the 4th Plaintiff established his claim for adverse possession. The Learned Counsel argued that the 4th Plaintiff met the threshold for establishing a claim of adverse possession over the suit land. The evidence adduced demonstrated that the 4th Plaintiff enjoyed open, peaceful and uninterrupted occupation of the suit land for a period exceeding twelve (12) years, with the clear intention to exclude the titled owners (animus possidendi). The fact that the 3rd Defendant proceeded in the main suit without calling witnesses further strengthens the Plaintiff's position. At the time of filing this suit in the year 2006, the Plaintiff had been on the property for over 25 years and it was never developed. 44.The position was supported by the legal framework being the provision of Section 7 of the Limitation of Action Act Cap. 22. This statutory provision is the cornerstone of adverse possession claims, establishing the period after which a registered owners right to recover land is extinguished. 45.The Learned Counsel submitted that the legal implications of the doctrine of adverse possession was well summarized by the court of Appeal in the case of; “Benjamin Kamau Murima & Another – Versus - Gladys Njeri C.A NO.213 OF 1996” where the court held thus;-“The combined effect of the relevant provisions of Section 7,13 and 17 of the Limitation of Actions Act Cap 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12years of adverse possession of that Land.”Further, in the case of “Patrick Tsangare Mangale – Versus - Mohamed Saleh Bawazir ELC NO. 406/2016 (O.S)” the court had this to say:-“For one to sustain a claim of adverse possession, he must demonstrate possession that is nec vi, nec claim and nec pre cario, that is possession which is without force, without secrecy and without permission, such possession must also be accompanied by the necessary animus possidendi, which is an intention to acquire the land as one’s own. Such possession must have been continuous and uninterrupted for at least 12 years.” 46.The Learned Counsel posited that this case was filed 25 years after the Plaintiff came onto the suit property. The 3rd Defendant never gave any contrary evidence. Their occupation was uninterrupted, peaceful and open. The Plaintiffs have proved their case beyond probability. The balance of probability refers to a level of certainty or degree of evidence that is needed to establish proof, especially in cases where rivaling parties have both attempted to prove their respective cases. To use the words of Lord Denning J. in “Miller – Versus - Minister of Pension 19472 ALL ER 372” that:-“if the evidence is such that the tribunal can say:“We think it more probable than not' the burden is discharged, but if the probabilities are equal it is not; Expressing that in percentage terms, if a judge conclude it is 50% likely that the Claimant’s case is right, then the claimant will lose. However, if it is 51%the Claimant wins”. 47.According to the Learned Counsel and going by the words of Lord Denning J, and the evidence on record, they comfortably said that the evidence tendered by the Plaintiff was 100% proof that he acquired adverse possession and therefore the scales tilt in his favour. 48.On the effect of the 3rd Defendant’s failure to call witnesses, the learned Counsel submitted that a significant procedural advantage lies in the fact that the 3rd Defendant proceeded without calling witnesses. The procedural default therefore means that the Plaintiff's testimony and any evidence adduced in support of the claim went largely unchallenged on material facts. The Honourable court therefore is persuaded to accept the Plaintiff's uncontroverted evidence as credible and sufficient to prove the claim of adverse possession as there was no substantive challenge to the factual matrix presented. 49.The 3rd Defendant filed a voluminous trial bundle to prove his case. These documents were never put to test. The Learned Counsel had scanned through both the court record and the bundle, and the Learned Counsel had not come across any order setting aside proceedings and for the matter to start afresh. It is trite law that whoever alleges must prove. The provision of Sections 107,108 and 109 of the Evidence Act Cap. 80 Laws of Kenya states as follows:-107 (1) Burden of proof Whoever desires any court to give judgement as to any legal right or liability depend on the existence of facts which he asserts must prove that those facts exists.(2)When a person is bound to prove the existence of any fact is said that the burden of proof lies on that person.108Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 50.They relied on the established principle that where a party fails to call witnesses to rebut evidence presented by the opposing party, the court is entitled to accept the uncontroverted evidence as true, provided it is credible. The underlying principle is that a party must actively challenge claims against them. The 3rd Defendant’s failure to present any rebuttal evidence or witnesses to contradict the Plaintiff's assertions regarding the nature, duration and continuity of possession effectively strengthens the Plaintiff's prima facie case. 51.The Learned Counsel posed that the 3rd Defendant filed some supporting affidavit by Harshil M.patel and Sarah Dorothy Carson to support his case. Surprisingly, the deponents averments clearly support the 4th Plaintiff's case over plot No. 103. They confirm arrival of the 3rd Defendant onto the scene in the year 2006 at the time this case had been instituted in court.The affidavit speaks of a perimeter wall being put up but conveniently no approvals had been provided to prove when it was put up. Similarly no building approvals have been provided from relevant authorities to confirm when the incomplete structures were put up. 52.What was for sure was that when the 4th Plaintiff came to court there was no one on the premises except him.The same had been appreciated by the court in its site visit report when it says that “there were several structures erected on it. Some were permanent and semi-permanent in nature”. This confirms occupation by the 4th Plaintiff. 53.On who bears the costs. The Learned Counsel submitted that under the provision of Section 27 of the Civil Procedure Act, cap. 21 costs follow the events. The 3rd Defendant herein made that application for setting aside Judgement which had resulted into two (2) decades of litigation. Therefore, the ultimate end game was for the 3rd Defendant to pay costs of the suit. Therefore, they urged the Honourable court to award costs to the 4th Plaintiff. 54.In conclusion, the Learned Counsel submitted that one of the principles of adverse possession is that the person seeking to acquire title to land by adverse possession must prove non-permissive or non-consensual, open, notorious, exclusive and adverse use by him. They humbly submitted that the 4th Plaintiff has proved this principle and is available to the prayers sought in the Further Amended Originating Summons. In the wise words of Lord Denning J., the 4th Plaintiff has proved his case on a balance of probability. C. The Written Submissions by the 3 rd Defendant 55.The 3rd Defendant through the Law firm of Messrs. Balala & Abed Advocates filed written submissions dated 8th December, 2025. M/s. Jullu Advocate submitted that the said submissions were the humble submissions of the 3rd Defendant and they submitted as hereunder. 56.Mohammed Mambo, Juma Kimbirwa, Suleiman Mwawali and Juma Bugu, now all deceased, filed the Originating Summons on 31st August, 2006. They sought to be declared proprietors of LR. Number 5004, Kwale Diani Beach Plot Number 283 and 284 and Mombasa/M.S/Beach Block Numbers 102 and 103 claiming to have acquired the same through adverse possession after staying or occupying the suit properties for a period exceeding 12 years immediately preceding the filing the suit. The same was supported by the Supporting Affidavit of Mohammed Mambo sworn on 31st August, 2006. He deponed, on behalf of all the other Plaintiffs/Applicants herein, that the suit properties were their ancestral land, they have resided, occupied and stayed thereon over the years without the permission, consent orauthority of all the Defendants, who, as they admit, are the registered owners. He deponed that they were born on the said properties and their late parents were even buried on there, confirming their continuous, open, adequate, notorious and uninterrupted occupation over a period exceeding 12 years. He swore that the properties have been subdivided and allocated the numbers above and that Defendants, who are unknown to them, have not developed or built any structures on the same. 57.The Learned Counsel averred that the chronology of events that followed immediately after filing of the originating summons were covered in the Certified Court Proceedings. The Learned Counsel highlighted the fact that sometime in 8th June, 2007, the Court granted the Plaintiffs leave to serve the Defendants vide substituted service and the Defendants given 21 days to respond. Later on 13th October, 2008, the Originating Summons was amended to include Mombasa/M.S/Beach Block Numbers 104 and 9934. Thereafter, the suit against the 1st and 5th Defendants was withdrawn and the Plaintiff stated that they would not file another suit against the 1st and 5th Defendants. 58.The case was heard on 30th June, 2009 and further on 15th July, 2009 and Ex - Parte Judgment delivered on 28th September, 2009 granting the 1st Plaintiff title over Plot Number 102, 2nd Plaintiff title over PlotNumber 993, 3rd Plaintiff title over Plot Number 104 and 4th Plaintiff title over Plot Number 103. On 18th November, 2009, the 3rd Defendant/ Respondent entered appearance and filed an application seeking to set aside the Ex - Parte Judgment as delivered on 28th September, 2009. The application was then heard and a Ruling delivered on 5th March, 2018 effectively setting aside the ex-parte judgement in its entirety. This then formed the basis of the Notice of Appeal' filed by the Plaintiff that later got dismissed by the Court of Appeal for want of prosecution. By the ruling setting aside the Ex - Parte Judgment, the suit reverted to the position prior to delivery of the Ex -Parte Judgment dated 28th September, 2009. The Amended Originating Summons dated had remained largely the same in substratum and content apart from the Further Amendment that occurred in 17th March, 2025. It was still opposed by the Affidavit of Peter Burugu, the Director of the 3rd Defendant. 59.The Learned Counsel submitted that this entire suit revolves around the question as whether the Plaintiffs acquired titles over the suit properties vide adverse possession. The suit finds its statutory underpinnings on the provision of Order XXXVI Rule 3D of the Civil Procedure Rules, 1924 and Section 3 and 3A of the Civil Procedure Act. Post the 2010 Constitution, the Civil Procedure Rules were amended in 2010 and Order XXXVI Rule 3D which now reads as Order 37 Rule 7(1) has gone largely unchanged in letter and substance. It provides as hereunder;Adverse possession [Order 37, rule 7.] 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. 3.The court shall direct on whom and in what manner the summons shall be served. 60.An apt description of the doctrine of adverse possession is as espoused by Makhandia JA in “Mtana Lewa – Versus - Kahindi Ngala Mwagandi (Civil Appeal 56 of 2014)[2015] KECA 532 (KLR)(17 July 2015)(Judgment)” who describes it plainly as hereunder;“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. Itmust be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 61.This is what is then codified in statute under the provision of Section 7, 13, 37 and 38 of the Limitation of Actions Act which then finds its procedural branches in the Civil Procedure Rules. Under this statutory regime, a person who has been in continuous, open, and exclusive possession of land, without the permission of the registered owner, for an uninterrupted period of 12 years, may apply to be registered as the legal proprietor of the said land. 62.The Court of Appeal in the case of:- “Bendera Karisa Karima – Versus - Kenya Airways Limited Civil Appeal E015 of 2023) [2025] KECA 1966 (KLR) (21 November 2025) (Judgment)” crystallized the essential elements that must be satisfied for a claim of adverse possession to succeed and which have been reiterated in numerous decisions of this Court as below:-“In Andafu – Versus - Akhulunya [2025] KECA 714 (KLR), this Court articulated the principle as follows:“Courts, on the other hand, have judicially developed the elements which must be satisfied before a claimant can succeed in an action for adverse possession. The leading cases from this Court in this regard include: Titus Mutuku Kasuve – Versus - Mwaani Investments Limited & 4 others [2004] eKLR; Titus Kigoro Munyi – Versus - Peter Mburu Kimani, Civil Appeal No. 28 of 2014; Wambugu – Versus - Njuguna [1983] KLR 172) and Karuntimi Raiji – Versus - M'makinya [2013] eKLR.The principles distilled from these cases are that in order to establish a claim of adverse possession, the possession must be:a.Adverse to the interests of the owner- meaning that the claimant is in possession as owner in contradistinction to holding in recognition of or subordination to the true owner or to a recognized superior claim of another;b.Actual- as opposed to constructive possession where the test is the degree of the actual use and enjoyment of the parcel of land involved by the claimant or his agent, tenant or licensee;c.Open and notorious - meaning that the possession must be open and conspicuous to the common observer so that the owner or his agent on visiting the land might readily see that the owner's rights are being invaded. Differently put, the possession must be manifest to the community;d.Without force - meaning that the possession and occupation must have been achieved peaceably not through actual or threatened violence;e.Exclusive - meaning that the possession must be of such exclusive character that it will operate as an ouster of the owner of the legal title. Differently put, the claimant must demonstrate that she wholly excluded the owner from possession for the required period;f.Continuous and uninterrupted for the period of twelve years - meaning that the title owner did not re-enter the property under circumstances showing her intention to assert dominion against the adverse user for at least twelve years. See Joseph Ndafu Njurukani & 2 Others – Versus - Emily Naliaka Barasa, Kisumu Civil Appeal No. 149 of 2022; Titus Mutuku Kasuve (Supra); Titus Kigoro Munyi (Supra); Wambugu vs. Njuguna(supra) and Karuntimi Raiji (supra).” 63.The Learned Counsel contended that guided as above, the Plaintiff must conjunctively prove actual, open and notorious, exclusive Occupation without force, continuously and uninterrupted for the period of 12 years. The Plaintiffs’ alleged that that they were born on the property and their parents were even buried on the said property. Actual occupation would then denote use and enjoyment of the suit properties. There was no proof that the Plaintiffs had used the property for any constructive activity over the alleged years they assert to have been in occupation. In fact, the graves that the plaintiff seem to claim to have used to bury their parents were nowhere to be seen as documented by the Court during the Site Visit. Adverse possession was a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must start with a wrongful dispossession of the rightful owner. Therefore, actual possession and occupation remains a rebuttable fact. On the other hand, the 3rd Respondent stated that he had been in possession of the properties since he acquired them, he constructed a perimeter wall round both properties and hired a caretaker to take care of the suit property over the years. In fact, the Caretaker is who the Court met in its site visit on 28th February, 2025 who was still on the suit property in the same capacity. Further, the construction of the perimeter wall was corroborated by the photographs” attached to the Affidavit and the Supporting Affidavit of the 3rd Respondent’s immediate neighbors, Harshil M. Patel and Sarah Dorothy who confirm to have seen the 3rd Respondentconstruct the wall. 64.Further the Learned Counsel submitted that as to occupation, use and enjoyment, the 3rd Respondent had constructed 8 and 4 Bedroomed Villas on the property which remained unfinished due to existing status quo orders issued by this Honorable Court. The Plaintiff had only produced documents of title” and nothing else as their proof of exclusive and actual possession. This could not suffice to meet the evidentiary burden cast on them to prove actual occupation of the suit property and as such they fail to surmount this very crucial element. 65.According to the Learned Counsel, the Court of Appeal in the case of:- “Mombasa Teachers Co-operative Savings & Credit Society Limited – Versus - Robert Muhambi Katana & 15 others [2018] KECA 402 (KLR)” held as hereunder:-“Likewise, it is settled that a person seeking to acquire title to land by of adverse possession must prove non permissive or non-consensual, actual open, notorious, exclusive and adverse use/ occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario. See Jandu – Versus - Kirplal & Another (1975) EA 225.In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period. See this Court's decision in Wambugu – Versus - Njuguna [1983] KLR 173.” 66.Having failed to discharge the burden of the burden of proving possession and occupation, all the other elements die a natural death. In the absence of possession, there cannot be any open, notorious, exclusive, continuous occupation, as it were. Even if the Honourable Court were to give the Plaintiff the benefit of doubt, they still fail to prove the mandatory period of 12 years required. In computing the requisite statutory time, the date on which a party entered possession without consent of the title holder was of significance. It was from that date that the requisite time frame begins to run. In this case, the Plaintiffs never specified when they started occupying the suit properties, how long their parents allegedly occupied the same, how long such occupation occurred preceding the filing of this suit or the exact time frame the 12 year mark could be said to be attained. In fact, none of the Plaintiffs alluded to this. They simply state, they had been on the land "for years”. Without particularizing the time period or providing evidence to support such, there was nothing to support the Plaintiffs' contention that they had been in occupation of the suit properties to entitle them to claim adverse possession of the suit property to sustain the prayers they sought before this Honorable Court. 67.Therefore, they submitted that the Plaintiffs had failed to meet the legal and evidentiary burden of proof to prove their claim of the suit property by way of adverse Possession. As such, the Further Amended Originating Summons is without merit and should be dismissed with costs to the 3rd Defendant/Respondent. D. The Supplementary Written Submissions by the 3 rd Defendant 68.The 3rd Defendant/Respondent filed their written submissions through the firm of Messrs. Balala & Abed Advocates dated 23rd February, 2026. M/s. Jullu Advocate submitted that while still beholden to their submissions dated 8th December, 2025, they humbly submitted that further in response to the Plaintiffs’ submissions all dated 17th February, 2026 as hereunder: 69.As to the 1st, 2nd and 3rd Plaintiff’s submissions, the Learned Counsel averred that the contents under Paragraph 2 in page 5, the 1st, 2nd and 3rd Plaintiffs stated that by the time the court set aside the Ex - Parte Judgment of the court granting ownership of the suits properties herein to the Plaintiff their rights over the suit property have crystallized. Further, they allege that the suit properties were ancestral. 70.The Supreme Court in the case of:- “Kiebia – Versus - M'lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR) (5 October 2018) (Judgment)” the apex dissected the issue of customary land rights as hereunder;“Be that as it may, it is undeniable that such rights of a person that subsisted at the time of first registration, as evidenced by his being in possession or actual occupation, are rooted in customary law. They arise under African customary law. They derive their validity from African customary law. They are “rights to which one is entitled in right only of such possession or occupation”. They have no equivalent either at common law or in equity. They do not arise through adverse possession, neither do they arise through prescription. For if they did arise through these processes, they would be overriding interests, not under Section 30(g), but under Section 30(f) of the Registered Land Act, which recognizes: “rights acquired or in the process of being acquired, by virtue of any written law relating to the limitation of actions or by prescription.”It is customary law and practice that clothes the rights of a person in possession or actual occupation, with legal validity. If customary law and practice, does not recognize such possession or actual occupation, then it cannot be a right to which a person is entitled. Madan J.A did in fact recognize this statement of principle without as much as saying so in Alan Kiama, when he stated: “…...they (meaning, the rights in possession or actual occupation) are not subject to interference or disturbance such as by eviction save where inquiry is made and they are not disclosed. In this case, the respondents were in possession and actual occupation of the land and they also cultivated it to the knowledge of the appellant. He made no inquiry; any inquiry would have been superfluous; he had himself lived on the land together with the respondents for a time and knew that they cultivated it.” 71.Guided as above, the substratum of this cause of action was rooted in adverse possession and could not be the basis of ancestral or customary rights over the land. In fact, the very foundation of this entire case raised questions over possession or occupation of the Plaintiffs on the suit property. Therefore, it could not be termed as ancestral land as the rights have not crystallized by the mere fact that the Plaintiffs’ possession and occupation is being questioned herein and this Honorable Court is to determine the same. Further, they also ask this court to be guided by the testimony of PW - 3 JUMA KEKE who testified that he was 72 years old and had been on the suit property forever 40 years in which case, they reiterated paragraph 5 of their submissions dated 8th December, 2025. 72.The Learned Counsel submitted that the effect of the Honorable Court setting aside an Ex - Parte Judgment, typically under the provision of Order 10 Rule 11 of the Civil Procedure Rules, 2010 nullifies the said Ex - Parte Judgment, stayed any active enforcement actions and reinstates the suit to the claim stage for a hearing on the merits. This was what this Honourable Court via its Ruling delivered on 5th March, 2010. Any reference to the Ex - Parte proceedings, now set aside, or further inquiry as to the same amounted to this Honourable Court sitting on appeal or review of its own decision. This Court could not set aside the proceedings and Judgment prior to 8th March, 2010 then be asked to now use the contents of the same proceedings to determine this matter. This was a legal and judicial absurdity. 73.This then would also apply to the contents of Paragraphs 1 and 2 in page 6 of the 1st, 2nd and 3rd Plaintiffs’ submissions which attempted to unearth issues that were the subject of the Rulings delivered on 6th February, 2024 and 26th September, 2024. At the contents of Paragraphs 3 and 4 in page 5, the 1st, 2nd and 3rd Plaintiffs submitted that:-This was affirmed during the site visit when the team involved in the same was informed by the director of the 3rd Defendant that the concrete perimeter wall and the askari house were constructedin the year 2006.If the Plaintiffs had the financial might of the 3rd Defendant, they would have secured the property once they got the judgement in their favour, however, the same was not possible and the 3rd Defendant, after the demise of the original Plaintiffs, took advantage of the situation to build a brick wall surrounding the suit properties and placed a guard to keep off any person unwanted by the said 3rd Defendant. This also enable the 3rd Defendant to do whatever altercations he wanted to the character of the properties; however, one thing that is difficult to extinguish from a place is its vegetation hence the visible presence of indigenous trees thereon. 74.They went ahead and submitted further that:-It should also be noted that the construction of the guard house, the goat and chicken shed as seen from the site visit were at a corner of the suit property and away from the beach, this insinuates the likely presence of a grave-site thereon as grave sites are ordinarily chosen to be at a separate isolated corner of a property and the fact that that is the location where the 3rd Defendant conveniently choose to put up his animal shed and guard house is highly suspicious and calculative all this during the time he was putting up a perimeter wall.It is our humble submission that there is a very high possibility that the 3rd Defendant undertook construction on the graves of the fathers of the original Plaintiffs so as to conceal any signs of their existence therein. 75.According to the Learned Counsel, paragraphs 3 and 4 in page 5 were facts not in evidence and therefore not admissible. This violated the provision of Sections 5 as read with 11 and 35 of the Evidence Act, Cap. 80. In any case, there could not be an insinuation of the presence of a grave site when during the site visit, in the presence of all the parties herein, the 1st, 2nd, 3rd and 4th Plaintiffs were asked about any gravesite belonging to their ancestors, and they stated that there were none thereon and the court equally noted that it could not see the presence of any debris to suggest they ever existed. 76.Therefore, the averments and allegations, whose details had been reproduced in the preceding paragraphs, had all been made from the bar and should be disregarded. Issues of an evidential nature, for instance, the financial standing of the Plaintiff that prevented them from securing the property once they got the Judgement in their favour or how the 3rd Defendant, after the demise of the original Plaintiffs, could have taken advantage of the situation to build a brick wall surrounding the suit properties, could only be brought before the court in a sworn affidavit. The sum of the contents of the above paragraphs were more emotional than factual. As such, they could not be considered as maters of probable value to support the Plaintiffs' case herein. 77.The Learned Counsel reiterated that the contents of their submissions dated 8th December, 2025 in response to any other aspect of the 1st, 2nd and 3rd Plaintiffs’ submissions dated 17th February, 2026 as if the same were set out verbatim or transversed seriatim and asked that this entire suit be dismissed with costs to the 3rd Defendant. 78.As to the 4th Plaintiff’s submissions dated 17th February, 2026 the Learned Counsel submitted that in response to paragraph 13 of the 4th Plaintiff’s Submissions, they reiterated paragraph 5 at page 2 of their submissions dated 8th December, 2025. In response to paragraph 14 of 4th Plaintiff’s Submissions, the 3rd Defendant filed a response to the main suit as contained in the Replying Affidavit of Peter Burugu continued as page 195-221 of the Trial Bundle. Therefore, the above paragraph was misrepresentative, incorrect and misleading.As to the contents of paragraph 15 of the 4th Plaintiff’s Submissions, they encouraged the 4th Plaintiff to acquaint himself with the Ruling of this Honourable Court as delivered on 8th March, 2010, found at page 101-107 of the 3rd Defendant’s Trial Bundle. 79.As to paragraphs 16 and 17 of the 4th Plaintiff's submissions, they agreed that the provisions of Section 107 and 108 of the Evidence Act, Cap. 80 applies as to Burden of Proof. However, such burden of proof rests solely on the 4th Plaintiff and not on the 3rd Defendant. The Court of Appeal in the case of:- “Kakuzi Limited – Versus - Makuyu Club (Suing through Joel Wanoike, Irungu Ndirangu & SK Kirubi as Trustees of the Club)” stated as hereunder as to burden of proof in adverse possession claims:-The burden of proof of adverse possession lies with the one claiming entitlement under adverse possession. In the case of Celina Muthoni Kithinji – Versus - Safiya Binti Swaleh & 8 others [2018] eKLR, the Court stated as follows:“It is also a well settled principle that a party claiming Adverse Possession ought to prove that this Possession was “nec vi, nec clam, nec precario,” that is, peaceful, open and continuous. The Possession should not have been through force, not in secrecy and without the authority or permission of the owner.” 80.The 4th Plaintiff could not simply shift the legal and evidentiary burden of proof to the 3rd Defendant as they seem to suggest with the above paragraphs. They also reiterated paragraphs 28-35 of our submissions dated 8th December, 2025 and submit that their arguments to the contrary must fail. Consequently, they equally reiterated that the contents of their submissions dated 8th December, 2025 in response to any other aspect of the 4th Plaintiff’s submissions dated 17th February, 2026 as if the same were set out verbatim or traversed seriatim and asked that this entire suit be dismissed with costs to the 3rd Defendant. V. Analysis and Determination 81.I have carefully read and analyzed all the pleadings herein, both the documentary evidence adduced in court, the written and oral submissions, the myriad of cited authorities by the parties, and the relevant provisions of the Constitution of Kenya, 2010 and the statures. 82.In this regard, and in order to reach an informed, fair, reasonable and Equitable decision herein, the Honourable Court has identified the following key five ( 5 ) salient issues for its determination. These are:-a.Whether the Plaintiffs have established their claim for adverse possession over L.R NO. 5004/KWALE/DIANI BEACH PLOT NOS. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993?b.Whether the Plaintiffs are entitled to be registered as proprietors of the suit properties and issued with certificates of title accordingly?c.What is the effect of the Defendants’ failure to call witnesses or tender viva voce evidence in rebuttal of the Plaintiffs’ case.d.Whether the 3rd Defendants’ acts of construction, occupation and use of the suit land including permanent concrete perimeter walls and several permanent, villas, a swimming pool, servant quarters interrupted or extinguished the Plaintiffs’ claim of adverse possession.e.Who meets costs of the suit VI. Site visit report Issue No. a). Whether the Plaintiffs have established their claim for adverse possession over L.R NO. 5004/Kwale/DIANI Beach Plot Nos. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993 83.The Honourable Court scheduled a site visit at Diani area on 28th February, 2025 and this is the report produced verbatim for ease of reference:-Republic Of KenyaIn The Environment And Land CourtAt KwaleELCC Case No. 247 OF 2021Site Visit (“Locus in Quo”) Report At Diani Area on 28th February 2025 at 12.50 P.M. I. Preliminaries. 1.The team arrived at the site at 12.50 pm. The site is situated at Diani area along the Diani Beach road. It was a distance of close to 3.5 Km from the Carrefour Supermarket/ ABSA Bank junction as heads towards the Lunga – Lunga general direction. 2.The session assembled. Thereafter introductions were conducted and the purpose of the visit was explained by the court. Members were invited to seek any clarifications on the site visit. 3.The Honourable Court has prepared a Site report. It has endeavored to make some salient findings and perhaps make recommendations in order to expedite the hearing and final determination of the case. II. Corama.Court:1.Hon. Justice L.L. Naikuni – ELC Kwale.2.Mr. Daniel Disii – The Court Assistant.3.Mr. George Omondi – the Judges’ Usher.4.Mr. John Ngari – The Judge’s Driver.b.Plaintiffs1.Mr. Osodo – The Plaintiff’s Advocate.2.M/s. Biasha Mwanyumba – Mother to the 1st Applicant.3.Mr. Nasor Juma.4.Mr. Muksin Juma Mboga5.Ms. Judy – Clerk to Mr. Osodo Advocate.c.Defendants1.M/s. Julu – 3rd Respondent’s Advocate.2.Mr. Peter Mburu Burugu – The Director.3.Mrs. Mary Burugu – The Co-Director.4.Mr. Joe – Manager and grandson to Mr. Peter Mburu Burugu.5.John Carson - Neighbor Diani Beachlets.6.Mr Kazungu Ngala – Caretaker.7.Gilbert Bwire – Paradise beach resort neighbour plot Kwale/ Diani Beach Block/ 104.8.Mahinda Ruhia – Architects for the development.9.Samuel Mbugua - Architects and design.(Hereinafter referred to as “The Team”)d.Security Operatives1.Sgt. Dishon Mkoji – Diani Police Station.2.Police Constable Dominic Mbithi – Diani Police Station. III. The purpose for the Site Visit 4.The Court explained the purpose of the site visit to the participants. It stated that it was conducted pursuant to a court order made on 5th February 2025 in accordance with the provision of Section 173 of the Evidence Act, Cap. 80; Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. The provisions of Order 18 Rule 11 of Civil Procedure Rules, to wit: -Power to court to inspect;“The court may at any stage of a suit inspect any property or thing concerning which any question may arise”While Order 40 Rule 10 (1) (a) provided to wit: -“The Court may, on the application if any party to a suit, and on such terms as it thinks fit: -a.Make an order for ….………Inspection of any property which is the subject matter to which any question may arise therein. IV. The Procedure 5.The court informed the people present that the site visit will involve walking around the whole of the suit land on the ground to come up with observation in terms of what is on the ground. 6.The Judge elucidated that the site visit was not with a view of gathering further evidence on the case but to make observation on the factual realities on the ground to enable the Court in making a fair, just and equitable decision. Ideally, the Honorable Court informed the team that the visit was purely to look, feel and observe on the issues brought in Court while inspecting the place. 7.Additionally, the Honourable Court explained to the parties that the purpose was not to adduce fresh evidence nor venture onto the veracity of the evidence already adduced, fill in gaps the parties evidence but purely to check and confirm the evidence lest the court runs into the risk of turning itself a witness in the case. A visit is an exception rather than the rule. 8.Further, the parties were advised to sustain high dignity, decorum and decency during the visit. It would be a team work driven process. While recording of the proceedings using electronic devices or manual writing would be allowed, photography or video shooting was strongly condemned due to the likely hood of being abused particularly through social media. V. Observations 9.The team made the following observations:-a.The location:- The suit land was located along the Diani Beach Road on the left hand side while moving from Diani Junction towards the Shimoni direction. It close to 6 Kilometres from Diani Police station.b.Size:- The suit land measures approximately 10 acres. The team learnt that initially it was 5 acres for Kwale/Diani Beach Block/ 102 and 5 acres for Kwale/ Diani Beach Block/103. It was observed that there are several structures erected on it. Some were permanent and semi-permanent in nature. Further, the land has plenty of natural and indigenous trees.c.Occupation:- Mr. Osodo informed court that his clients were in occupation since 1980. Orders were given for adverse possession in favour of his clients. Ms. Julu on the other hand informed court that they challenged the ex - parte Judgment delivered ostensibly for a claim of Land adverse possession. The challenge was successful and the suit was supposed to start de novo. Although Osodo’s client appealed but the appeal was dismissed for want of prosecution. Ms. Julu and Mr. Osodo informed court that there is a subsisting status quo order and for the site visit the court only needs to check what is inside the property.d.The team was informed some people were allegedly removed from the suit. And inquired whether they were brought back since the case was starting afresh. The team learnt that these people allegedly owned all that parcel of Land known as Land Reference Numbers Kwale/Diani Beach Block/104 which is adjacent to the suit property towards the right side. He informed court that all the parcels of land which were adjacent to each other being LR. No. Kwale/Diani Beach Block/102; LR. No. Kwale/Diani Beach Block/103; and LR. No. Kwale/ Diani Beach Block/104 measured 5 acres.e.The team observed that some people were claiming a bigger size of land apart from what was theirs.f.The Use:- It was noticed that the land was surrounded with a well-constructed eight (8) foot long concrete perimeter wall. The team was informed the team that he was the one who constructed the perimeter wall with entrance gate around the years 2005 – 2006 when a Caretaker for the property Mr. Kazungu was hired. There was a narrow (say four metre wide) rough road route connecting from the gate to the beach. He was issued with a lease for the property in the year 1989 and when seeking approvals that’s when people claimed ownership. when he bought the property. It was noted that LR. No. Kwale/Diani Beach Block/102 and 103 was combined and the property is a rectangular in shape. From the two parcels of land – LR. No. Kwale/Diani Beach Block/102 and 103 there existed an unfinished concrete 8-bedroom mansonette (villa) which was under construction. It was not roofed. The team learnt that the construction works had halted due to an injunctive order issued by Court in the pending litigation before the court.g.The court also noted that there was a 4-bedroom villa which was completed, a water tank at surface and a fence with wooden trees. The team learnt that the fenced area was intended to construct apartments. The team got access to the 4 – bedroomed villa. It appeared almost complete with the wiring and light part finishing remaining. The was a complete swimming pool adjusting to the villa with water inside. However, the team was informed that the swimming pool was not in use due to water shortages.h.The team got access to the 3-bedroom uncompleted villa. Majority of the work was still not done. The windows and doors were not fixed.i.Within the compound the team found some 2 pit latrines. They were close to the 4-bedroom villa for use by visitors while the other toilet was used by the care taker and other servants on the property.j.There were assorted indigenous trees and other plantations throughout the compound. Although they provided nice shades but needed to be well kept and treated as loose and dry leaves were scattered all over the compound making it rather untidy. The team also observed that a a corner of the land there were some semi – permanent (rusty iron sheet) rectangular long constructed structures which were used as servant quarters. There was life and a couple of families for the Caretaker living there. There were also a few poultry and livestock – cattle and goats which the team learnt were kept for the subsistence farming by the servants. There was also a store. We learnt that the place was already supplied with electricity from Kenya Power & Lighting and water from the County Government of Kwale.k.The court learnt that from a historical background, the Plot was ancestral. The locals insisted that there were graves on the land where their fore fathers were laid to rest. Additionally, according to them there were several structures where they lived in but which were demolished. The Court could not see the said graveyards nor debris of the demolished structures. Neighbors constructed a permanent house and apartments to the left of the suit property. 10.The team took a walk upto the beach. The serenity and ambience at the beach was excellent. There were several marked beacons planted by the Government (the Land Survey offices) indicating the boundary between the beach and the dry land. The team learnt that was the tradition all beaches within Diani. Further to this, we noticed large boulders placed at the suit property towards the beach. It was all a private arrangement. It was explained that these were purchased from quarry by the owners of the land. The main purpose was to prevent soil erosion from occurring. Specifically, they had sought permission from Court to do this through an application dated 20th January 2025 which was allowed by court on 5th February 2025. 11.Despite of taking an elaborate walk around the suit land, there were no beacons planted on the suit land as per observation. The team was shown the High and Low water mark placed towards the beach. Thus, it was difficult to fully appreciate not only the actual measurement of the land but also the exact boundaries of the land. 12.The team also visited the parcel of land – LR. No. Kwale/Diani Beach Block/104 we learnt was owned by an entity trading in the name and style of Paradise Hotel which belonged to one Mr. Gilbert Bwire’s employer. It was observed there were 9 cottages which were complete. They were for leasing out as the owner intended to establish a tourism resort place consisting of a restaurant and accommodation spaces. The team also noted there several wild and nicely planted plantations consisting of indigenous trees. There was a water point that was not in use. Towards the gate there was an office for the hotel and a gate man cabin. The property had a well cemented-pavement running in the middle of the plot. 13.Right outside the perimeter wall, in the neighbourhood, the team saw various constructions and structures which were permanent in nature and for business. VI. The Skecth map of the land VI. The Conclusion of the Site Visit. 14.At the conclusion of the site visit, the Honourable Court provided the team with the following directions: - 1.That there be a mention on 11th March 2025 to ascertain full compliance of the orders and further directions.2.That the Honourable Court to prepare and supply all the parties with a draft Site Visit report for their further input accordingly preferably before the mention date.There being no other business, the site visit was concluded at 2.00pm by a word of prayer from Mrs. Mary Burugu.The Site Visit Report Prepared and Dated This ….…3Rd……. Day Of ……...... March .......... 2025.…………………………………Hon. Mr. Justice L.L. Naikuni,Environment & Land Court At Kwale 84.Now turning to the issues under this sub–heading. The Honourable Court has deciphered that the main issue is whether the Plaintiffs have established their claim for adverse possession over L.R NO. 5004/KWALE/DIANI BEACH PLOT NOS. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993. Although the Defendants contested the suit, the Plaintiffs still bore the duty to prove their case on a balance of probabilities as required by law. 85.Prior to proceeding any further, the issue on the Honourable Court feels it imperative to expend on the interpretation of the legal efficacy and ratio of Order 10 Rule 11 of the Civil Procedure Rules, 2010. During the highlighting of Submissions, this fundamental legal issue was expansively and comprehensively deliberated on by the Learned Counsels for the 4th Plaintiff and the 3rd Defendant. Essentially, the arguments revolved around the admissibility of the oral evidence adduced by the witnesses summoned by the Plaintiffs or nor prior to the Ex – Parte Judgement being set aside. 86.The provision of Order 10 Rule 11 of the Civil Procedure Rules provides that Ex - Parte interlocutory Judgments in default of appearance or defence may be set aside. It stipulates as follows:“Where judgment has been entered under this order the court may set aside or vary such judgment and any consequential decree or upon such terms as are just.”Legally speaking, this provision of the law gives the Court unfettered discretion to set aside or vary interlocutory Judgement but in so doing it should not set upon itself and/or cause any hardship or miscarriage to Justice. In so doing, it has to satisfy the principles as enunciated in as spelt out in several cases including “Pithon Waweru Maina – Versus – Thuka Mugiria (1983) eKLR”; “Phillip Kiptoo Chemwolo & Mumias Sugar Co. Ltd – Versus - Augustine Kubende (1982-88) KAR 1036”. Where the courts held that:-“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties.” 81.Additionally, I cite the case of “Patel – Versus - East Africa Cargo Handling Services Ltd (1974) EA 75” where the court held that:-“There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex - parte judgment, except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules”. 82.Finally, on this issue, the case of:- “Shah – Versus - Mbogo & Another (1967) E.A 116”, the Court of Appeal stated that the discretion to set aside an Ex - Parte Judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error but not to assist a party who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the course of justice. 87.In a nutshell, I fully concur with the Learned Counsel for the 4th Plaintiff to wit that the setting aside would be exclusively “……on the Judgement per se and any consequential Decree or order ……”. In the instant case, the Court while setting aside the Ex – Parte Judgement, it never directed that the matter starts “De Novo” as it where which in its own wisedom had all the right to have done so. Thus, I discern that all the proceedings and other adduced evidence by the Plaintiffs witnesses is intact and are still part of the proceedings to be relied on by the trial court. However, the said proceedings is subject to challenge by any party.. Furthermore, the Court has taken judicial notice to wit that although the 3rd Defendant in their Submissions in passing and in a very thin membrane attacked challenged these proceedings but at the same time heavily attacked the said evidence by the witness while buttressing their case on the cause of action – a claim of Land Adverse possession. Clearly, they are bound by the provision of Section 120 of the Evidence Act, Cap. 80 on the the Doctrine of Estoppel for they cannot again be seen to be denouncing it. The English adage:- “What is good for Gender is good for the Goose” comes I here to play. There is nothing to stop this Court from relying on this proceedings. Evidently, from the record all the Plaintiffs are now deceased and thus it would not be realistic to invoke the provision of Section 146 ( 4 ) of the Evidence Act, Cap. 80 and Order 18 Rule 10 of the Civil Procedure Rules, 2010 on recalling any of them for cross examination and re – examination or verifying the veracity of their evidence. Hence, the Honourable Court, in the interest of “the Doctrine of fair hearing” Justice, Equity and Conscience enshrined under the provision of Articles 25 ( c ), 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, has taken deliberate liberty and/or effort to critically re – assess and re – evaluate the certified copies of the evidence already adduced by the witnesses summoned by the Plaintiffs herein. I strongly hold that that that matter is now settled. 88.So back to the issue on claim for Land Adverse possession. 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.” 89.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.” 90.This is what in law is termed as the “Burden of Proof” and is encapsulated for by 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.” 91.Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. The doctrine is anchored on 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.” 92.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. 93.The procedure for seeking relief on a claim based on adverse is provided for in the provision of 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. 94.And the provision of Order 37 of the 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.” 95.Under 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. 96.The provisions of Sections 107, 108 & 109 of the Evidence Act (Cap 80, Laws of Kenya) provides that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts must prove that those facts exist. The Plaintiffs therefore had to demonstrate actual, open, exclusive, and uninterrupted occupation of the suit properties for at least twelve (12) years, without permission of the registered owners. This burden has strengthened the Defendants’ silence or procedural missteps. It is a substantive requirement that ensures that claims of adverse possession are not founded on mere assertions but on demonstrable facts that extinguish the registered owner’s rights. 97.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).” 98.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.” 99.Additionally, 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.’ 100.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…” 101.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:-a.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.b.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.c.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.d.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.e.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,f.The possession must be continuous uninterrupted, unbroken, for the necessary statutory period.g.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 102.Therefore, to determine whether the Applicants’ rights accrued the Court will seek to answer the following:-i.How did the Applicant take possession of the suit property?ii.When did he take possession and occupation of the suit property?iii.What was the nature of his possession and occupation?iv.How long has the Applicant been in possession? 103.In a nutshell, adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 104.As already stated above, while re – evaluating and re – assessing the evidence adduced in court on 30th June, 2009 (exactly 17 years ago!) by the five ( 5 ) Plaintiffs witnesses (PW – 1, 2, 3, 4 & 5) who all testified under oath, it has decided to re produce it here verbatim as follows:- PW – 1 was called Mohammed Mambo (in Kiswahili language). I am the 1st Plaintiff in this case. It was a case of Plot No. 102. I have lived on that plot for the past twenty ( 20) years. I farm on this plot. I rear cattle and goats there. The Plot is at Galu Kinondo. The Plot has been registered . This a copy of the Green card for the Plot. This copy is certified and produced as Plaintiff Exhibit No. 1. The registered owner is Orbit Developers Limited. I have never seen Orbit Developers there. In 2006, I did place a caution on the Plot. I have lived there for the past twenty (20) years. I have never seen anyone come to claim the land. I am not aware that the caution was lifted. I only came to know that the Caution was lifted last….This Court to issue a declaration that I am the owner of that Plot. I have lived there undisturbed for the past twenty ( 20) years. Nobody has ever come too evict me or to claim the plot as theirs. PW – 2 – He was called Juma Saidi Bigii (in Kiswahili language). He was the 4th Plaintiff. This is in reference to Plot No. 103. I have lived there for the past 25 years. I live and tend (sic) and farm my herd livestock – cattle and goats. It is on Galu/Kinondo Pwani Beach. This is the Green card Certificate copy of the Plot. The first owners named as Orbit Developers Limited on 29May, 1980. I do not know them. They have never come to that land. I placed a caution on the land in….The Caution was later removed by the District Land Registrar. I do not know why. I was born there. I ask the court to declare me as the owner of the Plot. I have lived there undisturbed for the past 25 years. PW – 3 – he was called Juma Mohammed Keke (in Kiswahili language). I live at Galu Kinondo. I am 72 years old. I am in Court in reference of Plot No. 104. I have lived on that Plot for the past 40 years. I farm there and I herd my flock there. Nobody has ever come to claim the Plot. This is the Green Card..it indicates that it belongs to Orbit developers Limited. I saw them come to demarcate the land about 15 years ago. Since then nobody has ever come to the land. I ask court to declare the me as the owner of the land. I was born there. I have lived there undisturbed for the past 40 years. I seek to produce the Green card. Plaintiff Exhibit 3. PW – 4 – My name is Juma Saidi Kimbirwa. I live in Ukunda Diani. I was born in Ukunda. I have come to Court in connection with Plot No. 993. I lived on that Plot for the past Eighteen (18) years . I then moved to Ukunda which is nearby. I herd goats and planted tomatoes and peanuts on that Plot. The Green card shows Sterling Investments Limited as the registered owners of the Plot. I have never seen them there. I ask the Court to declare me as the owner of the Plot. I seek to produce the Green card as Plaintiff Exhibit No. 4. PW – 5 – My full names is Mohamed Jembe (in English language). I am the District Land Registrar, Kwale. I have been Summoned in this Case. I am aware of Plots nos. 102, 103, 104 and 993. They are on Diani Beach. I have here the Original Green card for all these Plots. For the Plot no. 102 & 103, the registered owner is Orbit Developers Limited. Plot No. 104 is registered in the names of Michael Lewis. Plot No. 993 is registered in the names of Sterling Investments Limited. I did certify the copies in Court. They are true copies of the records we hold. That is all”. 105.From the above evidence, the Honourable Court finds that the evidence fails to satisfy the fundamental and legal ingredients to satisfy being granted titles to the suit land under the doctrine of land adverse possession under the following aspects:-a).The issue of occupation:- The witnesses by the Plaintiffs testified that they had occupied the suit properties for over 25 years. They claim to have been born on the land. There were no evidence of birth such as Certificate of Identity cards, the Letters from the location Chief; or prove and evidence of their neighbours. By any standards, having lived on a parcel of land for this period there ought to have been certain tangible traces of that. None of them indicated where they were currently living on the land by the time of tendering their evidence.b).The issue of the use of the land:-i.They claimed to have been undertaking subsistence farming – tomatoes and peanuts and livestock keeping – cattle and goats. They failed to provide any empirical and tangible evidence of their occupation of the suit land such as photographs of structures, human habitation, the livestock and on the cultivation.ii.Indeed, from the site visit conducted by the Court apart from a few indigenous trees, there were no such evidence such as debris of the demolished structures, ploughed land, livestock yards/paddocks or mature, graveyards (taking that all the Plaintiffs are now deceased) and so forth no it.c).The issue of continuous & uninterrupted stay on land:i).It is not in dispute that Plots Nos. 102. 103 and 993 were registered in the names of Orbit Developers Limited, Michael Lewis and Sterlings Investment Limited.ii).The witnesses – (PW – 1, 2, 3 & 4) all claim to have registered Caution against the land but which was lifted. For what reason would they be undertaking such a legal action? Clearly, there were disputes going on over the ownership of the land. They all have testified to have lived on the suit land “undisturbed”. I wonder what this terminology connotes in law unless for the benefit of doubt they meant “Uninterruptedly”. Nonetheless, it is not clear what happened to them as they all seem to have voluntarily vacated the suit property to live elsewhere. PW – 4 was emphatically he lived at Ukunda, Diani.iii).Further, they failed to demonstrate how comes they voluntarily vacated the suit land and the reason for so doing. Ideally, the evidence failed to demonstrate open, continuous, exclusive, and uninterrupted possession, non – permissiveness for well over the statutory twelve years.d).Non – Permissiveness:- From the evidence, the Plaintiffs were aware that the suit land were legally registered to the owners. Subsequently, they registered Caution against the land but which were removed by the Land Registrar. Despite of the removal of the Caution, the registered proprietors of the land never forcefully evicted the Plaintiffs from the land. They vacated it freely and voluntarily. Hence, they would be living on it under the close supervision and permission by the Defendants. Besides, the Defendants undertook massive development of visible permanent structures on it. These included constructed permanent perimeter walls, permanent 4 – bedroomed Villas, a Swimming pool, servant quarters from the year 2006. 106.Therefore, from the pleadings, evidence, and authorities cited, the Court finds that the Plaintiffs have failed to demonstrate actual, open, exclusive, and uninterrupted occupation of the suit properties for a period exceeding twelve years. Their claim of possession does not satisfy the statutory and judicial requirements for adverse possession. They were all a matter of conjecture, historical and innuendoes. 107.Accordingly, the Court holds that the Plaintiffs have failed to establish their claim for adverse possession over L.R NO. 5004/KWALE/DIANI BEACH PLOT NOS. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993. Issue No. b). Whether the Plaintiffs are entitled to be registered as proprietors of the suit properties and issued with certificates of title accordingly 108.Under this sub–heading, the Honourable Court has deciphered that the main issue is whether the Plaintiffs are entitled to be registered as proprietors of the suit properties and issued with certificates of title accordingly.As already stated, the Plaintiffs have failed to demonstrate, through evidence and submissions, that they ever occupied the suit properties openly, peacefully, and continuously for periods exceeding twelve (12) years. The question now is whether such occupation entitles them to registration as proprietors under the law, thereby extinguishing the Defendants’ registered title and vesting ownership in the Plaintiffs. 109.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 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. 110.The procedure is reinforced by the provision of Order 37 Rule 7 of the Civil Procedure Rules, 2010, which requires such claims to be brought by Originating Summons supported by affidavit evidence and certified extracts of title. This ensures that the court is satisfied not only with the factual occupation but also with the legal substratum of the claim. 111.In the case of:- “Mbira – Versus - Gachuhi [2002] 1 EALR 137”, the Court stated that once the statutory period has run, the adverse possessor acquires a right to apply for registration, and the court is bound to recognize that right.. 112.Under the provision of Section 38 (1) of the Limitation of Actions Act, the Plaintiffs are entitled to be registered as proprietors in place of the Defendants. The extinguishment of the Defendants’ title is not discretionary but a statutory consequence of the Plaintiffs’ proven occupation. 113.The Court therefore finds that the Plaintiffs have not established their claim for adverse possession and are entitled to be registered as proprietors of L.R NO. 5004/KWALE/DIANI BEACH PLOT NOS. 283 & 284 and MSA/M.S./Diani Beach Block Nos. 102, 103, 104 & 993, to be issued with certificates of title. ISSUE No. C: What is the effect of the Defendants’ failure to call witnesses or tender viva voce evidence in rebuttal of the Plaintiffs’ case 114.Under this sub–heading, the Honourable Court has deciphered that the issue is whether the Defendants’ failure to call witnesses or tender viva voce evidence in rebuttal of the Plaintiffs’ case has any bearing on the outcome of this suit. It is trite law that the burden of proof lies on the party who asserts a fact. The provision of Section 107 of the Evidence Act, Cap. 80, Laws of Kenya provides:“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.” 115.Thus, the Plaintiffs must prove their claim for adverse possession on a balance of probabilities, regardless of whether the Defendants contest the case. The absence of defence evidence does not absolve the Plaintiffs of this duty. The Court must still interrogate whether the Plaintiffs’ occupation was nec vi, nec clam, nec precario — without force, secrecy, or permission — and whether it was continuous and exclusive for the statutory period of twelve years. 116.It is not in doubt that the Defendants entered Appearance. Despite of the fact of the Defendant failure to call any witness, does not incriminate them on any allegations made the Plaintiffs’ testimony. 117.In the case of:- “Shaneebal Limited – Versus - County Government of Machakos (2018) eKLR”, where the Court cited the case of “Janet Kaphiphe Ouma & Ano - Versus - Marie Stopes International (Kenya), Kisumu HCC No.68 of 2007”, the Court held that:-“In this matter apart from filing its statement of Defence the defendant did not adduce any evidence in support of assertions made therein . The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations….Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same.’’ 118.Thus, the failure by the Defendants to summons witnesses subjects the Plaintiffs’ claim to stand on a balance of probabilities. It does not tilt the scales in their favour, entitling them to registration as proprietors of the suit properties. Issue No. D: Whether the Defendants’ acts of construction and occupation, including permanent perimeter walls, villas, Swimming pool interrupted or extinguished the Plaintiffs’ claim of adverse possession 119.Under this sub–heading, the Honourable Court has deciphered that the issue is whether the Defendants’ acts of construction and occupation, including perimeter walls, swimming pools, permanent structures for servants, and villas, interrupted or extinguished the Plaintiffs’ claim of adverse possession.The doctrine of adverse possession is premised on uninterrupted, open, exclusive, and non‑permissive occupation for at least twelve (12) years. The jurisprudence in Kenya has consistently emphasized that adverse possession accrues by default of the registered owner’s inaction, and once the statutory period lapses, the registered owner’s rights are extinguished. 120.The law is clear that time ceases to run only when the registered owner asserts his rights by either: making physical entry into the land with the intention of repossession, or instituting legal proceedings to recover possession 121.This principle was firmly established in the case of:- “Githu – Versus - Ndeete [1984] KLR”, where the Court of Appeal held that mere issuance of notices or threats does not stop time; only actual re‑entry or legal action does. The Court stressed that adverse possession is not defeated by symbolic gestures but by concrete acts of repossession. Similarly, in “Kenya Commercial Bank – Versus - Sarah Njeri Muchene [2020] eKLR”, the Court reiterated that adverse possession continues to accrue unless the registered owner takes tangible steps to repossess the land. The Court noted that even transfers of ownership do not reset time; adverse possession runs with the land irrespective of change in proprietorship. 122.The Defendants argue that they constructed perimeter walls, swimming pool and 4 – bedroomed Villas around the year 2006, thereby asserting control over the suit properties. However, the Plaintiffs claim to have already been in occupation for over 25 years by the time of filing the suit in the year 2006. Ideally, their rights under the Limitation of Actions Act, Cap. 22 ought to have already crystallized, extinguishing the Defendants’ title. But several issues come question here. By the time the Defendant was undertaking the construction of the concrete, visible and evident structures on the land – the perimeter walls, the 4 bedroomed villas, swimming pool, servants quarters etc where were the Plaintiffs? What legal precautionary measures such as registering Inhibitions under the Section 68 ( 1 ) & (2) of the Land Registration Act, No. 3 of 2012; Section 79 ( 1 ) & ( 2 ) of the Land Registration (General) Regulations, 2017; or Injunctive orders under the provision of Order 40 of the Civil Procedure Rules, 2010 and the guidance of the Classicus case of “Giella – Versus - Cassman Brown Limited (1973) (EA. 358)”, or even registering Caveat Emptors and so forth as action to restrain the Defendants from obtaining consents, approvals, undertraining the constructions? Instead they opted to take a passive approach. “Equity Does not Aid the Indolent. Be that as it may, the Court has noted that at some point the Plaintiffs registered a caution on the land but which was subsequently removed and/or lifted by the District Land Registrar. 123.The site Visit was a Roller Coaster to Court. It’s report confirmed that the Defendant continued to reside, farm, and maintain structures on the land. The Defendants’ developments were incomplete and only stalled due to the pendency of litigation and subject to status quo orders. 124.The Court finds that the Defendants’ acts of construction and occupation, including perimeter walls and villas interrupt or extinguish the Plaintiffs’ claim of adverse possession. The Defendants’ developments were therefore effectively defeats the rights that may have been accrued if at all under the law. 125.Accordingly, the Plaintiffs’ claim become invalid, and their entitlement to registration as proprietors of the suit properties stands affected by the Defendants’ subsequent constructions. Issue No. e). Who bears the costs of the suit 126.It is now well established that the issue of cost is at the discretion of the Court. Costs mean the award that party is granted at the conclusion of legal action or proceeding in any litigation. 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” 127.This principle is codified under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, of the 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.” 128.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. 129.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.” 130.In the present matter, it is now affirmed that the 1st, 2nd, 3rd 4th & 5th Plaintiffs have failed in establishing their claim for land adverse possession. On the other hand, the Court has taken judicial notice that the Defendants, particularly the 3rd Defendant were engaged in prolonged litigation whereby they were compelled to file applications to set aside Ex – Parte Judgments and raising defences on the matter. In the process, they incurred colossal amounts in the litigation. Be that as it may, although this litigation has spanned nearly two decades, occasioning significant expenses and delay to the Defendants, the Court finds it reasonable, fair and Just for each party to bear their own costs. VII. Conclusion and Disposition 131.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 Plaintiffs have failed to demonstrate uninterrupted, exclusive, and adverse possession of the suit properties for a period exceeding the statutory twelve (12) years, thereby extinguishing the Defendants’ title under Section 17 of the Limitation of Actions Act, Cap, 22, Laws of Kenya. 132.For avoidance of any doubt, the Court proceeds to make the following specific orders:-a.That Judgement be and is hereby entered dismissing the suit by the Plaintiffs/Applicants as per the Further Amended Originating Summons dated 17 th March 2025 in its entirety.b.That the previous orders by this Court restraining the Defendants from undertaking any development on the suit land are and be hereby set aside. In essence, unless otherwise stated, the Defendants shall be at liberty to proceed on with any activities on the suit land as they may deem fit and suitable pursuant to the provisions of the Article 40 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 and Sections 24, 25 and 26 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012.c.That each party to bear their own costs.It is so ordered accordingly. JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS 9 TH DAY OF JULY 026.……………………………… .HON. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURTATKWALEJudgement delivered in the presence of:-a. Mr. Daniel Disii, the Court Assistant.b. Mr. Osodo Advocate for the 1st, 2nd & 3rd Plaintiffs/Applicants.c. Mr. Siminyu Advocate for the 4th Plaintiff/Applicant.d. M/s. Jullu Advocate for the 3rd Defendant/Respondent.e. No appearance for the 1st, 2nd 4th & 5th Defendants.