Kitoyi v Rawayo & another (Environment and Land Case E012 of 2024) [2026] KEELC 4739 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT SIAYA** **ELC CASE No. E012 OF 2024 (OS)** **IN THE MATTER OF: THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA** **IN THE MATTER OF: THE ACQUISITION OF TITLE BY WAY OF ADVERSE POSSESSION OF A DEFINED PORTION MEASURING 0.8 HA (2 ACRES) OUT OF LR. SOUTH UGENYA/YIRO/1161 (6.0HA) NOW DIVIDED TO 3889 0.8HA BY MARY AMOLO KITOYI** **BETWEEN** **MARY AMOLO KITOYI** ……………………………………………. **PLAINTIFF** **VS** **MOSES JACKSON ABUONJI RAWAYO** …………………… **1ST DEFENDANT** **HENRY OCHIENG RAWAYO** ………………………………. **2ND DEFENDANT** *(Sued on their Behalf and as the Legal Administrators* *of* **CLEOPHAS RAWAYO WANDO** - *Deceased*) **JACKSON OMONDI OLOO** ……………………………. **3RD DEFENDANT** **JUDGEMENT** 1. The Plaintiff herein commenced this suit by way of Originating Summons (the present OS) dated 31st August, 2024 inviting the court to determine the following issues: - 2. **WHETHER** the Plaintiff has been in open, quiet and notorious possession of an area measuring 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 in the names of JACKSON OMONDI OLOO for a period exceeding 12 years required in Law for acquisition of land by way of adverse possession. 3. **WHETHER** the Defendant’s entitlement and title to a portion measuring 0.8Ha out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889(HA) has become extinguished upon expiry of 12 years from the time the Plaintiff acquired the same in the year 1994. 4. **WHETHER** the Plaintiff is entitled to the title of a portion measuring 0.8 Ha (2 Acres) out of **LR. SOUTH UGENYA/YIRO/1161 (6.0HA)** now divided to create plot No. 3889 by virtue of adverse possession since she has occupied the same for a period running over 71 years without interruption. 5. **WHETHER** the Plaintiff has acquired the title to the said portion of land measuring 0.8 Ha (2 Acres) out of the said land by virtue of adverse possession and whether such title shall be issued for the portion he possesses. 6. **WHO** should pay the costs of this application? 7. The Plaintiff specifically seeks for the following orders: 8. THAT the Defendant’s right over 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/ 1161 (6.0HA) now divided to create plot No. 3889 as has been possessed by the Plaintiff for over 12 years is extinguished by adverse possession from the time Plaintiff acquired the same. 9. THAT the Plaintiff do and is hereby granted right of TITLE to an area measuring 0.8 HA (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889. 10. THAT this Honourable Court either reverts the subdivided titles 3888 & 3889 to the original suit land SOUTH UGENYA/YIRO/1161 for proper distribution to the Plaintiff or alternatively orders the Land Registrar Ugenya Sub- County to transfer the title SOUTH UGENYA/YIRO/3839 directly to the Plaintiff. 11. THAT an ORDER of permanent injunction be and is hereby issued against the Defendants permanently restraining them either by themselves, relatives, servants, workers, agents and/or any other persons claiming through them from interfering with the defined portion of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 which the Plaintiff is claiming. 12. THAT this Honourable Court do issue further ORDERS it may deem just and expedient. 13. THAT the cost of this suit be provided for by the Defendants. 14. The Plaintiff swore an Affidavit dated 31st August, 2024 in support of the Originating Summons. The Plaintiff’s case is that the parcel of land known as LR. No. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 (suit property) was prior to this suit registered in the name of Wando Rawayo, the 1st and 2nd Defendants’ grandfather. The Plaintiff averred that she had no parcel of land prior to the land adjudication exercise in 1971. The Plaintiff however claims that she was born and raised in the suit property in 1953, before the adjudication exercise of 1971. 15. The Plaintiff claims that she was 18 years old at the time of adjudication, but the Defendants’ grandfather Wando Rawayo secretly registered his name as the proprietor of the whole suit land without involving her. That she has been on the land for over 12 years, and had by the year 1983, acquired the same by way of adverse possession. She avers that on 4th January, 1990 the 1st and 2nd Defendants’ father, one Cephania Rawayo Wando, secretly and without the Plaintiff’s knowledge, secretly substituted the names of Wando Rawayo. That he further sub-divided it into 1674 and 1675 and owned the same until his demise. 16. The Plaintiff avers that on 26th June, 2023 the 1st and 2nd Defendants substituted their deceased father on the title without consulting her, despite knowing that she had interests on the land. She alleged that the 1st and 2nd Defendants have since subdivided the portion she occupies with her family and sold plot no. 3389 to the 3rd Defendant, while retaining plot no. 3888. The Plaintiff has accused the Defendants of depriving her of her only land, on which she has buried her kin. That the 3rd Defendant is forcefully evicting her from the land without justification, and has through his farming activities thereon, exhumed graves on the land. 17. The Plaintiff thus avers that if the orders sought herein are not granted, the Defendants will unjustly evict her yet she has no other land apart from the suit property. She asserted that her interests and claim is to be granted title to the portion of the suit property that she is claiming. She stated that she had been in occupation of the suit property for more than 71 years since her birth in 1963. That the 1st and 2nd Defendants had no right to sell the disputed and distinct part of the land to the 3rd Defendant, thereby, the said sale was null and void. She asked that the application be allowed. **The 1st and 2nd Defendants’ Case** 1. Upon service of the Motion, the 1st and 2nd Defendant filed a joint Replying Affidavit sworn on 24th October, 2024 by Moses Jackson Abuonji Rawayo, the 1st Defendant, in opposition thereof. The 1st Defendant accused the Plaintiff of lack of candour, and termed the OS mischievous, malicious and an abuse as well as misuse of judicial time and process. He deponed that the suit property originally known as LR. No. South Ugenya/Yiro/1161 measuring 6.0 Ha was registered in the name of Wando Rawayo (deceased), their grandfather, on 01.12.1971. That he was issued with a title deed on 28.12.1972 under the Registered Land Act. 2. The 1st Defendant deponed that the suit land was their ancestral land which they had occupied with their entire families before and after the adjudication done in 1971. He averred that he and his brother, the 2nd Defendant were born and raised on the suit land. He deponed that their late grandfather transferred the suit land to their late father, Cephania Rawayo Wando, on 04.01.1990. That their father subdivided the land into LR. No. South Ugenya/Yiro/1674, which he registered in his name, and LR. No. South Ugenya/Yiro/1675, registered to Joseph Oloo Onguda. He adds that his father established their home on his portion of land, plot no. 1674, where he was buried upon his demise on 26.11.1996. 3. The 1st Defendant states that thereafter, the land was legally transmitted to him and his brother after they obtained letters of administration, and they were issued with title on 16.08.2023. That they subdivided their land into several plots including LR. No. South Ugenya/Yiro/3838 measuring 3.59 Ha registered to them, and 3839 measuring 0.8 Ha, sold to the 3rd Defendant. They claimed that their father and grandfather were both buried on the suit property, LR. No. South Ugenya/Yiro/1161 before it was subdivided. 4. According to the Defendants, no intermeddlers have occupied the land or any portion thereof, and he refuted the Plaintiff’s claim that she had occupied 0.8 Ha for over 71 years. The 1st Defendant claims that in 2021, the Plaintiff lost a family member and she buried them on their father’s land, parcel no. 1674, without their knowledge, consent or authority. He deponed that the Plaintiff even attempted to sell a portion of LR. No. South Ugenya/Yiro/1674 in 2021, but was unsuccessful. He asked the court to find the Plaintiff’s claim unmeritorious. 5. The 1st Defendant asserts that for one to claim adverse possession, they must prove non-permissive, actual, open, notorious, exclusive and adverse use of the land for the statutory period without interruption. He asserted that he who comes to equity must come with clean hands. He challenged the jurisdiction of this court claiming that an adverse possession claim did not seek to determine a claim relating to title to land, but challenged title to land. Further, that there is no valuation to show that the property was valued at over KShs. 20 million to warrant it being filed in this court instead of the magistrate’s court. **The 3rd Defendant’s Case** 1. The 3rd Defendant equally opposed the OS by filing a Replying Affidavit sworn on 24th October, 2024 where he deponed that the 1st and 2nd Defendants carried out succession process, after which, they sold him a portion of LR. No. South Ugenya/Yiro/1674 measuring 0.8Ha. That since the said LR. No. South Ugenya/Yiro/1674 had not been demarcated, they invited a surveyor to survey and hive off the portion he had purchased. That therefore, LR. No. South Ugenya/Yiro/1674 was subdivided into LR. No. South Ugenya/Yiro/3838 & 3839. He avers that LR. No. South Ugenya/Yiro/3839 was transferred to him and he was issued with a title deed in February, 2024. 2. The 3rd Defendant claims that he never heard of any dispute during the succession process, subsequent demarcation and occupation. He alleged that he took vacant possession of the land, had since fenced off his portion, occupied, developed it by putting up a structure and cultivated the land. He averred that the land he purchased was not occupied by the Plaintiff as alleged. That she was never in use of the land, and neither did she have any structures thereon. He claimed that he was an innocent purchaser for value and without notice, having done due diligence, thus the Plaintiff could not attempt to obtain his land. He urged that the Plaintiff’s claim should be directed at the 1st and 2nd Defendant, not him. **HEARING AND EVIDENCE** 1. On 11th March, 2025 the court directed that the Originating Summons be converted to a Plaint and the replying Affidavits be converted to Defences. The Court further directed that the suit proceeds by way of viva voce evidence. The case was heard on 11th June, 2025 and 15th October 2025. **The Plaintiff’s Case** 1. The Plaintiff, Mary Amolo Kitoyi, who introduced herself as a farmer, testified under oath as PW1. She adopted her witness statement dated 31.08.2024 as her evidence-in-chief. She relied on the documents in her List of Documents dated 31.08.2024 as her evidence and produced them as PEx 1-5. She testified that she had come to court to seek assistance because her land was being taken away. She clarified that the land in question is South Ugenya/Yiro/3839, originally parcel no. 1161. She told the court that she knew the Defendants as they lived together on the suit property. 2. On cross-examination by Mr. Ochanyo the Advocate for the 1st and 2nd Defendants, PW1 testified that she was born on the suit property in 1953. She testified that adjudication in the area was done in 1971, and that at the time, she was 18 years old and married with children. She testified that she had come to court because she had lived on the land for over 12 years. She stated that she did not object to the adjudication in favour of Wando Rawayo. That from the time of adjudication, 12 years lapsed in the year 1983, although she took no steps then to claim the land. 3. On being referred to the green card, PW1 confirmed that she knew Cephania Rawayo Wando, and admitted that she did nothing when he was registered the owner of the land in 1990 or when he sub-divided it to 1674 & 1675. PW1 was referred to the green card for parcel no. 1674, and she testified that she did not place any objection to the succession proceedings. Further, that she had not lodged any entry against the title claiming interest thereon. PW1 testified that her land is parcel no. 3839, but she did not know when it was opened. She however conceded that per entry no. 6 of the green card, it was made on 19.12.2023. She testified that from 19/12/2023, to date, 12 years had not yet lapsed. She however insisted that she had rights to the property. 4. Cross-examined by Mr. Idi Counsel appearing for the 3rd Defendant testified that she knew that parcel no. 1675 belonged to Rawayo Wando. She told the court that she did not know Joseph Oloo Ongoda. On being informed that he was the owner of parcel no. 1675, PW1 admitted that she knew he had come into the land as a purchaser. PW1 however did not know if there was an owner before the plot was sold to him. PW1 said that she did not know the 3rd Defendant as she had never seen him, but had only heard that he had come to the property with a surveyor. She testified that she had not reported this to the chief or the Lands office, and confirmed that the 3rd Defendant is currently on the land and is using it. 5. On re-examination, PW1 testified that she heard that the survey was done in March, 2024 and had taken no steps then, but had instead filed this suit in 2024 after the 3rd Defendant took the land. PW1 reiterated that she did not know the 3rd Defendant as she had never met him. She also reiterated that the 3rd Defendant is currently using the land after she stopped using it in 2024. She testified that she did not take any steps earlier, and that aside from Cephania, she had not known the land was in the name of any other owner. PW1 reiterated that from 19.12.2023 when the register for plot no. 3839, 12 years had not lapsed and reiterated that plot no. 3839 was a sub-division of parcel no. 1161. 6. John Godia Ahonda testified as PW2 and introduced himself as a farmer and resident of Yiro West Sub-location. He adopted his witness statement dated 31.01.2025 as his evidence-in-chief. He testified that his father was the Plaintiff’s husband’s elder brother. He testified that the Plaintiff was born in 1953 and lived with her family in Yiro West on Parcel no. 1161. PW2 testified that he knew the 1st and 2nd Defendant as they were related and they were also neighbours. 7. On cross-examination by Mr. Ochanyo, PW2 testified that the Plaintiff is his paternal uncle’s wife, and she was currently staying on parcel no. 1157. PW2 was referred to his witness statement where he had claimed that adverse possession accrued in 1965, and he testified that in 1965, he was 22 years old, whereas the Plaintiff was 12 years old. PW2 affirmed his statement that even going by the date of the first registration, it accrued in 1983 when the Plaintiff was already an adult of about 30 years and married. He admitted that he had taken no steps to help the Plaintiff as regards her claim on the land, as her brother Peter Owuor Ombiyo was still alive, but could not tell if Peter took any action on the land. 8. PW2 cross-examined by Mr. Idi testified that adverse possession came into play in 1983. He repeated that the Plaintiff is married to his paternal uncle who lives in Nyarana Village, Yiro West Sub-location with the Plaintiff. He further testified that the Plaintiff does not live on plot no. 3839. PW2 however testified that he was there when the Plaintiff was evicted around March/April, 2024, but the 3rd Defendant was not present at that time. He testified that although the particular parcel is now occupied by the 3rd Defendant, it belongs to the Plaintiff. 9. On being examined by the court, PW2 testified that he neighbours the Plaintiff on plot no. 3839. 10. With the above the Plaintiff’s case was marked as closed. **The 1st & 2nd Defendants’ Case** 1. On behalf of the 1st and 2nd Defendants’ case, Moses Jackson Abuonji Rawayo, the 1st Defendant, testified as DW1. He introduced himself as a carpenter and resident of Yiro West, Nyarana village. He adopted his witness statement dated 06.11.2024 as his evidence-in-chief. He also produced the documents in his List of Documents dated 24.10.2025 as DEx1-9, excluding item 8 thereof. PW2 testified that the Plaintiff was his neighbour, the 2nd Defendant was his younger brother, while the 3rd Defendant had bought the land from the family of Rawayo. He testified that the first owner of LR. No. South Ugenya/Yiro/1161 was his paternal grandfather, Wando Rawayo. He explained that Cephania Rawayo Wando was his father. 2. DW1 testified that the Plaintiff is their neighbour who was on LR. No. South Ugenya/Yiro/1157, but also stated that parcel no. 1157 was not adjacent to parcel no. 1161, as there is parcel no. LR. No. South Ugenya/Yiro/1160 between the two. He termed the Plaintiff’s testimony and evidence as untrue. DW1 refuted the Plaintiff’s claim that she had lived on the land for 71 years, and testified that he is 57 years old and had lived on the land since 2001 and had never seen the Plaintiff on the land. He insists that the Plaintiff lives on plot no. 1157 and that only the three Defendants’ houses are on the suit land. He asked that the suit be dismissed with costs. 3. Upon cross-examination by Mr. Odera, DW1 reiterated that he was born in 1968 in Nakuru, but had been living on the land since 2001. DW1 testified that the Plaintiff was married and lived on parcel no. 1157 with her people. He however had no document showing that plot no. 1157 belonged to the Plaintiff. DW1 was referred to his statement where he had claimed he was born and raised on the land. To this he testified that he had lived on the land throughout save for going to work and back. He did not know the Plaintiff’s family member who died in 2021 and was buried on the land. DW2 agreed that he never reported the incident or moved to court, and that the body is still buried on Plot no. 1674 even though he was already the registered owner then. 4. DW1 further testified that she did not go to court for succession to enable the transfer to him. DW1 testified that the Plaintiff tried to sell parcel no. 1674, but the buyer conducted a search and realised she did not own the land, thus he abandoned the sale. DW1 conceded that at the time the Plaintiff tried to sell the land, she was cultivating it and when he came back in 2001, he found her cultivating the land. He claimed however that she no longer uses the land and he did not know why she stopped. DW1 admitted that at the time she buried her relative, the Plaintiff was still cultivating the land. 5. DW1 further admitted that the Plaintiff was cultivating a portion of the land but he could not specify the size she was using. He however states that the Plaintiff never entered his or his brother’s portion. DW1 clarified that parcel 1674 is now subdivided into plot nos. 3838, which he owns with his brother, and 3839 which was sold to the 3rd Defendant in 2024 and is registered to him. He further admitted that the parcel sold to the 3rd Defendant in 2024 comprised the portion the Plaintiff was cultivating, and that the grave is still on the land. 6. Cross-examined by Mr. Idi, DW1 testified that they sold 2 Acres to the 3rd Defendant in 2024, and at the time the land was still known as parcel no. 1674. DW1 testified that they sold the land after they had completed succession proceedings for the estate of Cephania, and had registered the Certificate of Confirmation of Grant. DW1 testified that negotiations with the 3rd Defendant started in 2021, and he took the 3rd Defendant to the said portion no. 1674. That while there was no boundary or a house at that time of the visit, part of the land was under cultivation, while the rest was a forest. DW1 testified that after purchase, the 3rd Defendant started using the land in 2023 and they brought the surveyor in 2024 to confirm the boundaries. 7. On re-examination, DW1 testified that he had not brought a search for parcel no. 1157 as it is not the subject of the instant suit. In addition, he stated that he was away when the Plaintiff buried her relative, and his people could not do anything as the body was brought in the evening and buried the following morning. He testified that at entry 3 of the green card, he had not done any succession, but at entry 4 thereof, he had done succession. He could not tell why the Land Registry had not cancelled entry no. 3 after the succession. He reiterated that the Plaintiff tried to sell the land to Godia and even received money. DW1 admitted that they sold the portion that the Plaintiff was cultivating as it had never been her land or in her name. DW2 however stated that the grave was not sold as it fell inside parcel no. 3838. 8. With the above the 1st and 2nd Defendant’s case was marked as closed. **The 3rd Defendant’s Case** 1. Jackson Omondi Oloo, the 3rd Defendant, testified in support of his case as DW2. DW2 told the court that he is a civil servant, working as a deputy County Commissioner residing in Ugunja sub-location. DW2 adopted his Replying Affidavit sworn on 24.10.2025 as his evidence-in-chief. DW2 produced the documents in his List of Documents dated 21.03.2025 as DW2 EXb1-8. He told this court the he did not know the Plaintiff, but knew the 1st and 2nd Defendants as they had sold him a portion of parcel no. 1674. He explained that the 1st and 2nd Defendants showed him a certificate of Confirmation of Grant and he conducted due diligence by obtaining a search. 2. DW2 told the court that he also visited the land prior to purchase, and confirmed that the land existed and had some few houses. That since there were no boundaries, he invited a surveyor to demarcate the land. DW2 claims that he paid the purchase price in full and that he never encountered any hostility during the visit. That he started using the land in 2023 after purchase. He asserts that he did due diligence, followed the proper procedure to transfer the land and is in occupation, and urged that the case be dismissed with costs 3. DW2 was then cross-examined by Mr. Odera and he testified that he started negotiating on the land in 2023 and not 2021 as claimed by DW1. DW2 further stated that the sale agreement was done in July, 2023 and not 2nd July, 2024. He however claims that he had been paying in instalments, such that by 2nd July, 2023 the 1st and 2nd Defendants had received full payment. DW2 testified that he took possession in December, 2023 and he had not been made aware of the Plaintiff’s interest on the land or her attempt to sell it. He denied seeing any cultivation, a forest or a graveyard on the land when he visited and claims that he only saw tree stumps. He testified that he could not say whether the 1st and 2nd Defendants had not disclosed material facts, but stated that the issue only emerged after this case was filed. 4. Upon cross-examination by Mr. Ochanyo the witness reiterated that he conducted due diligence and did not see the Plaintiff’s name in the documents he obtained. He testified that when he visited the land, there was no indication of the Plaintiff’s claim as she was not on the land at the time of the said visit. 5. On re-examination, DW2 clarified that there was no indication of a grave on the land he purchased. 6. With the above the 3rd Defendants case was marked as closed. **SUBMISSIONS** 1. The Court invited the parties to file their final written submissions. In compliance, the Plaintiff filed her submissions dated 6th November, 2025. The 1st and 2nd Defendants’ filed submissions dated 14th November, 2025 and the 3rd Defendant’s submissions are dated 14th November, 2025. **The Plaintiff’s Submissions** 1. Highlighting the summary of the facts of the case and the evidence and testimonies adduced in court, Counsel then identified one issue for determination, whether the Plaintiff had acquired the suit property through adverse possession. It was submitted that the Plaintiff’s witnesses had testified that the Plaintiff was born and raised on the land by her late mother, who she later buried thereon. Counsel submitted that the Defendants were not keen on disputing this fact, but had actually confirmed that the Plaintiff had buried her kin on the land. That the land was sub-divided in 1991, which created the distinct part disputed and which was sold and transferred to the 3rd Defendant in 2023 2. Counsel however argues that the Plaintiff had acquired the original land by way of adverse possession when it was still intact, before creation of parcel no. 3839. That the Plaintiff acquired the same prior to 1971 prior to the first registration as Parcel no. 1161. It was urged that even if they were to count from the date of registration, 12 years lapsed in 1983, many years before the date of the subdivision leading to the creation of plot no. 3839 that has since been transferred to the 3rd Defendant. Counsel submitted that the subdivision and sale in 2023 was done 40 years after she had acquired the land by way of adverse possession, thus the land was not available for sale and transfer to the 3rd Defendant. The court was invited to issue title to the Plaintiff and award costs of the suit. **The 1st & 2nd Defendants’ Submissions** 1. Summarising the facts and evidence of the case Counsel for the 1st and 2nd Defendants cited Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and submitted that the said provisions extinguish a proprietor’s title to land at the expiry of 12 years in favour of an adverse possessor. Counsel also submitted that Section 28(h) of the Land Registration Act recognises overriding interests on land as rights acquired or in the process of being acquired through the laws of limitation or by prescription. Further, that prescription is one of the ways of acquiring land under Section 7 of the Land Act. 2. Counsel pointed that the Plaintiff was an adult during adjudication in 1971 and never took any steps even after 1983 or through the years even when the land was being subdivided, transmitted and sold. Counsel argued that the rights of an adverse possessor are equitable in nature, and are overriding interests on the subject land as against the registered proprietor. Counsel further argued that whereas possession is a matter of fact, the court is required to draw legal inferences on the adverse nature thereof. 3. On the issue of costs, Counsel cited Section 27 of the Civil Procedure Act, and argued that since the Plaintiff had not proved her case, the suit should be dismissed with costs to the 1st and 2nd Defendants. Counsel relied on the following cases in support of his arguments; ***Kasuve vs Mwani Investments Limited & 4 Others 1 KLR 184***, ***Samwel Nykenogo vs Samwel Orucho Onyaru (2010) eKLR***, ***Joseph Gahumi Kiritu vs Lawrence Munyambu Kabura CA No. 20 of 1993*** and ***Kweyu vs Omuto CA Civ Appeal 8 of 1990 (unreported)***. **The 3rd Defendants’ Submissions** 1. Counsel cited the provisions of Section 7 of the Limitation of Actions Act as well as the case of ***Mbira vs Gachuhi (2002)1 EALR 137*** for the elements of adverse possession. It was submitted that the Plaintiff failed to establish a credible claim for adverse possession owing to material inconsistencies in her pleadings, witness statement and oral evidence regarding the date that her possession became adverse. That the Plaintiff’s claims are conflicting, thus it is not clear when exactly she contends to have come onto the land adversely. Counsel argued that the Plaintiff cannot be heard to claim that she entered into the land and adversely occupied it when she was a minor who was born thereon. 2. It was asserted that the Plaintiff was juggling between two dates, instead of showing the specific date that she relies on, thus failing on the limb of possession of the land for the requisite 12-year period. Counsel further submitted that in claiming that the 1st and 2nd Defendants’ grandfather fraudulently procured registration and left out their family, the Plaintiff was claiming ownership of the land, which cannot run concurrently with a claim for adverse possession. Further, that the Plaintiff did not disclose who her parents were or how and when they came to be in the suit property. Counsel argued that the Plaintiff could only claim adverse possession under the persons who first occupied the land adversely as against the registered owner’s interest. 3. Additionally, it was submitted that the testimony had established that the Plaintiff was married and lived at her matrimonial home and not the suit property. Counsel reiterated the 3rd Defendant’s testimony that he only found trees and thickets when he visited the suit land prior to purchase. It was asserted that the burial of a loved one does not buttress ownership, and that the same was contested by the 1st and 2nd Defendant. Counsel submitted that the Plaintiff had not shown this court the specific acreage of the land she is claiming, and that the 0.8 Ha claimed is as a result of the subdivision that gave rise to parcel no. 3839. Consequently, the Plaintiff had failed to prove that she had acquired the land by way of adverse possession. 4. As to the claim that the 3rd Defendant is an innocent purchaser for value without notice, counsel cited the case of ***Katende vs Haridar & Company Ltd (2008)2 EA 173***. it was submitted that the 3rd Defendant conducted due diligence, visited the suit property and paid the consideration in full. He reiterated the 3rd Defendant’s allegation that when he visited the suit property, he found only stumps and thickets and no structures. He adds that the 3rd Defendant was not informed of any adverse claim over the suit property and the vendors guaranteed that the land was free from any encumbrances. 5. It is submitted that the 3rd Defendant currently holds a certificate of title acquired through a lawful process, and that he was not party to any fraud or knowledge of third-party claims. Citing Section 26(1) of the Land Registration Act it was submitted that the Plaintiff had not proved any of the vitiating grounds set out therein. Counsel urged therefore that the 3rd Defendant’s title is indefeasible. That the Plaintiff had also not proved any of the elements required in adverse possession, and in fact the grave was not on the 3rd Defendant’s land. That having failed to impeach the 3rd Defendant’s title or prove adverse possession, the Plaintiff’s claim should be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. I have considered the pleadings, the witness testimonies and evidence adduced, as well as the rival written submissions by the Advocates for the parties herein. I am of the view that the following issues stand for determination: - 2. ***Whether this court has jurisdiction to entertain a claim of adverse possession*** 3. ***Whether the Plaintiff has proved her claim for adverse possession*** 4. ***What reliefs should this court issue?*** 5. ***Who shall bear the costs of this application?*** **Whether this court has jurisdiction to entertain a claim of adverse possession** 1. The issue that must first be determined before delving into the merits of the case, is that of jurisdiction, which arose from the pleadings. At paragraph 20 of the 1st and 2nd Defendant’s Replying Affidavit, it was deponed that Section 26(3) and (4) of the Environment & land Court Act, as well as Section 9 of the Magistrate’s Court Act, clothed the Magistrates Courts with power to determine claims relating to title over land. Further, that a claim for adverse possession is one that challenges the tile of the land holder. According to the 1st & 2nd Defendants, there was no valuation report showing that the suit land is valued at KShs. 20 million to warrant the matter being filed in this court instead of the Magistrates Court. 2. Section 26(3) & (4) of the Environment & Land Court Act cited by the 1st and 2nd Defendants provides as follows: - ***(3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country.*** ***(4) Subject to Article 169(2) of the Constitution, the Magistrate appointed under sub-section (3) shall have jurisdiction and power to handle —*** ***(a) disputes relating to offences defined in any Act of Parliament dealing with environment and land; and*** ***(b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act.*** 1. On the other hand, Section 9 of the Magistrates Court Act provides that: - ***A magistrate's court shall—*** ***(a) in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 8D) and subject to the pecuniary limits under section 7(1), hear and determine claims relating to—*** ***(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;*** ***(ii) compulsory acquisition of land;*** ***(iii) land administration and management;*** ***(iv) public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and*** ***(v) environment and land generally;*** 1. Arising from above statutory provisions, Magistrates Court indeed have jurisdiction over matters relating to title to land. However, adverse possession claims require special jurisdiction conferred specifically by the Limitation of Actions Act under which the doctrine is codified. More specifically, Section 38 of the Limitation of Actions Act is instructive as it prescribes the court that is vested with the requisite jurisdiction to entertain and adjudicate upon a claim for adverse possession. Section 38 of the Limitation of Actions Act, provides as follows: - ***38. Registration of title to land or easement acquired under Act*** ***(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 subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.*** ***(3) A proprietor of land who has acquired a right to an easement under section 32 of this Act may apply to the High Court for an order vesting the easement in him, and may register any order so obtained in the register of the land or lease affected by the easement and in the register of the land or lease for whose benefit it has been acquired, and the easement comes into being upon such registration being made, but not before.*** ***(4) The proprietor, the applicant and any other person interested may apply to the High Court for the determination of any question arising under this section. (5) The Minister for the time being responsible for Land may make rules for facilitating the registration of titles to land or to easements acquired under this Act.*** 1. Having been enacted before the Constitution of Kenya, 2010, Section 38 of the Limitation of Actions Act vested the jurisdiction to adjudicate upon adverse possession is vested in the High court. Pursuant to Section 7 of the 6th Schedule of the Constitution 2010, upon its promulgation, the existing laws were to be read with necessary adaptations and alterations so as to enable same to comply with and or accord by the terms of the 2010 Constitution. Per Article 162 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, this court took over the jurisdiction/mandate of the High court with regards to matters relating to the environment and use, occupation and title to land. This includes the mandate over adverse possession claims under Section38 of the Limitation of Actions Act, which now rests solely in this court. 2. Indeed, the Limitation of Actions Act does not reference the Magistrates Court, which have been in place long before the promulgation of the Constitution, 2010, as having jurisdiction to entertain and adjudicate adverse possession claims. Even more obvious, neither the Environment and Land court Act nor the Magistrates Court Act 2015 amended or repealed the provisions of Section 38 of the Limitations of Actions Act as to pave way for Magistrates court to adjudicate adverse possession claims. The fact that Magistrates Courts may, in recent times, have entertained claims founded on adverse possession does not, in itself, alter or override the prevailing legal position. 3. The law is clear that a Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. Jurisdiction therefore cannot be assumed or acquired through practice or precedent. This was succinctly stated by the Supreme Court in the case of ***Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR***, as follows: - ***“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”*** 1. Moreover, the question as to whether or not the Magistrates courts have jurisdiction to entertain or adjudicate upon a claim for adverse possession had been addressed by the Court of Appeal. In the case of ***Sugawara vs Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR)***, the Court of Appeal held thus: - ***“48. It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court.*** **49. *We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specified in the hierarchy of courts, in terms of section 7 of the Magistrates Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of filing, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act.*** ***50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded.”*** 1. In the circumstances, there can be no doubt that Magistrates Courts are not vested with jurisdiction to hear and determine claims founded on adverse possession. It therefore follows that the proceedings herein were properly instituted before this Court, being the court vested with the requisite jurisdiction under the law to hear and determine the Plaintiff's Originating Summons. **Whether the Plaintiff has proved her claim for adverse possession** 1. Adverse possession was aptly defined by the Court of Appeal in the case of ***Mtana Lewa vs Kahindi Ngala Mwagandi (2015) eKLR***, as follows: - ***“6. … 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. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act…”*** 1. As earlier stated, the doctrine of adverse possession is codified in the Limitation of Actions Act, which at Section 7 of provides that: - ***7. Actions to recover land*** ***An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.*** 1. It has since been established that a party seeking to succeed in a claim founded on adverse possession must establish, on a balance of probabilities, the following essential elements: - 2. on what date he came into possession. 3. what was the nature of his possession? 4. whether the fact of his possession was known to the other party. 5. for how long his possession has continued and 6. that the possession was open and undisturbed for the requisite 12 years. 7. Regarding the date of entry, the Plaintiff claims that she was born on the suit property in 1953 and was raised on the land. This statement would ideally have disqualified her claim. I will in this regard rely on the holding in ***Haro Yonda Juaje vs Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR***, where the court stated thus: - ***“One cannot claim to have acquired land by adverse possession if he claims that the land, he is occupying is his ancestral land having been born and brought up on the land and the registered owner has never been in possession of that land….one cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession.”*** 1. However, I must quickly add that the above decision is distinguished from the instant matter since the Plaintiff concedes that the land was in fact allotted to the late Wando Rawayo during adjudication in 1971. I have seen a copy of the green card, parcel no. 1161, which indicates that it was opened on 01.12.1971 in the name of Wando Rawayo, and the first title issued in his favour on 28.12.1972. The Plaintiff testified that she was an adult at the time of adjudication in 1971. Therefore, she has known since then and throughout her time on the land that she was not in fact the registered owner of the suit land. In addition, the Plaintiff has not claimed that the registered owners never lived on the land. In fact, it appears that she occupied one portion of the mother title, being parcel no. 1161, while the family of Wando Rawayo occupied another portion. 2. I will now address the Plaintiff’s possession. By law, the Claimant’s possession and occupation of the suit property must be averse to the registered owner’s title and proprietary interests. There must be an apparent dispossession of the land from the land owner. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It must, therefore, start with a wrongful dispossession of the rightful owner. 3. The above position was aptly clarified in ***Kisumu* Civil Appeal No. 27 of 2013; Samuel Kihamba vs Mary Mbaisi [2015] eKLR**, where the court stated as follows: - **“Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly**, **that is**, **without force**, **without secrecy**, **and** **without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land”** 1. The 1st Defendant (DW1) testified that negotiations with the 3rd Defendant started in 2021, and that at the time, he took the 3rd Defendant to the said portion no. 1674. DW2 testified that during the said visit, part of the land was under cultivation, while the rest was a forest. The 3rd Defendant, who testified as DW2 claims that there was no evidence of the Plaintiff’s occupation when he was taken to the land. He testified that there was no cultivation and that he only saw tree stumps, meaning not just one, but several of them. 2. The court believes DW1’s testimony, who in essence confirmed what PW1 and PW2 told this court, that the land was being utilised by the Plaintiff through cultivation. The lack of a house on the land is not evidence that the land was not occupied, seeing as it has been confirmed that there was evidence of cultivation. Moreover, in ***Teresa Wachuka Gachira vs Joseph Mwangi Gachira (2009) KECA 445 (KLR)***, the Court of Appeal held that possession could have been by way of fencing or cultivation depending on the nature, situation or other characteristics of the land. The case of Gabriel ***Mbui vs Mukindia Maranya (1993) eKLR***, is also instructive, where the court explained that: - **“*If the land, by its nature, is suitable and normally used for seasonable pursuits, then seasonal use may be continuous enough. The test is whether the adverse possessor used the land as a true owner would.”*** 1. The Concise Oxford English Dictionary 12th Edition defines tree stump as part of a tree trunk left projecting from the ground after the rest has fallen or been felled. On my part loosely defined is the base portion of a tree trunk and its root system, which remain in the ground after the tree has been cut down or naturally broken. Being that there was no just one tree stump, but enough to earn a place in the 3rd Defendant’s memory of his first visit to the land he intended to purchase, I do not think the said tree stumps were a result of an event of mass breakage of trees, but a man-made event of cutting them down. 2. For me even tree stumps can be proof enough that someone has been on the land carrying out some form of activities. They could be proof that someone was felling trees for one reason or the other, be it to pave way for planting or harvesting them for sell. Yet, despite evidence of activities on the land, the 3rd Defendant did not bother to inquire as to the status of the land with regards to occupation and usage. 3. In any event he stated in his evidence in chief that when he visited the land there were some few houses. The 3rd Defendant cannot, therefore, claim to have conducted sufficient due diligence, and for that reason, he cannot be deemed an innocent purchaser for value without notice. 4. The adverse nature of the Plaintiff’s possession is to me further proved by the fact that she buried her kin on the land, showing that she had every intention of claiming it as her own to the exclusion of the rights and interest of the registered owners. Her intention to own is further proved by the 1st Defendant’s testimony that she once attempted to sell the land to a third party. Only one who deems themselves of having acquired rights to the land would attempt this. These two events demonstrate what is known as animus possidendi, which has been defined in numerous authorities as the intention to have the land. 5. On the issue of burying her kin on the suit land, the 1st Defendant testified that he was away when the Plaintiff buried her kin on the land, but his family was there and they did not stop her. Moreover, even upon his return to the land, the 1st and 2nd Defendant did nothing to remove the Plaintiff nor have the body buried thereon exhumed. This satisfies the requirement that the possession must not be in secrecy, but must be with the knowledge of the registered owner. 6. Moreover, from the testimony of the Plaintiff (PW1) as corroborated by the evidence of PW2, the Plaintiff started living on the land way before adjudication in 1971. This court has been told that she was in fact born on the suit property and lived there with her family. The Plaintiff therefore remained on the land after adjudication as a trespasser, whose possession and/or occupation was well within the registered owners’ knowledge despite the various changes in ownership and subdivisions of the mother title resulting in the present parcel no. 3839 that she now claims. 7. What about the period of possession that is for how long the Plaintiff was in possession of the land, indeed this court has established that the Plaintiff was born on the suit property? However, at the time, the land was not registered to any person. It is trite that a claim for adverse possession is one which attaches and moves with the tittle. That being the case, the period prior to issuance of the first title cannot count when calculating time for adverse possession, for there would be no title for which the Plaintiff’s claim for adverse possession would attach. Time therefore started to run once the late Wando Rawayo was first registered as the proprietor of the suit land, which is on 01.12.1971 when the register for the suit property was opened, and the late Wando Rawayo registered as proprietor. 12 years from 1971 would mean that the Plaintiff’s claim of adverse possession matured on 01.12.1983. 8. Additionally, the 1st Defendant in his testimony admits that the Plaintiff had been cultivating the land prior to the year 2001 when he claims he came back to the land, and that he found her cultivating it. He further testified that at the time she buried her relative in the year 2021, the Plaintiff was still cultivating the land. So, even if this court were to believe this timeline and count from the year 2001, then by March/April, 2024 when PW2 and the Plaintiff tell the court that the Plaintiff was evicted, it was well over 20 years. Whichever way this court looks at the circumstances of this case, the Plaintiff herein has been on the land for way over the 12 years prescribed by statute. 9. The court must be satisfied that the possession was open and undisturbed for the requisite 12 years. By the time the Plaintiff filed the originating summons in 2024, she had already been in possession of the property for exceeding the statutory 12-year limit. Even by the time the 3rd Defendant became registered as proprietor of the suit land and the Plaintiff was evicted soon thereafter, the requirement of uninterrupted 12-year possession had already been met. No attempts were made by the Defendants or their predecessors in title over all those years to assert title or remove the Plaintiff from the land. Clearly therefore, time did not stop running at any point before the lapse of the requisite 12-year period. 10. It has been urged that from the time the register for plot no. 3839 was opened until the date of filing this present suit, 12 years had not lapsed. To resolve this, I will draw guidance from ***Mwangi & Another vs Mwangi (1986) KLR 328***, where it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the right. 11. In any case the provisions of Section 28 of the Land Registration Act, recognise adverse possession as an overriding interest. This courts understanding therefore is that the right to claim land through adverse possession is not defeated or reset by a sale, transfer, or subdivision of the land. Therefore, a registered owner cannot simply sell or subdivide the property in an attempt to defeat the twelve-year timeline or bypass the adverse possessor’s rights, which is exactly what the 1st and 2nd Defendants herein sought to do. In such a case, the new owner inherits the property subject to the existing adverse possession claim. See ***Benson Mukuwa Wachira Vs the Assumption Sisters of Nairobi Registered Trustees (2016) EKLR*** where the Court of appeal held that sell, transfer or charge do not stop time from running for purpose of adverse possession. 12. This court therefore finds that the Plaintiff had been in adverse possession of the suit land for a period far exceeding 12 years by the time she was evicted therefrom. 13. On the issue of whether or not the Defendant’s title has become extinguished by operation of the Law, Section 17 of the Limitation of Actions Act, provides that upon the expiration of the period prescribed by the Act for a person to bring an action to recover land the title of that land is extinguished. In ***Mbui vs Maranya (Supra)***, the court further held that: - ***“31. It is self-evident from the enactments, that adverse possession extinguishes the title of the dispossessed unregistered owner, while by virtue of adverse possession a registered owner becomes a bare trustee for the stranger in occupation. Consequently, in either case, if the stranger has possession does not transfer title to the stranger. It does not give the intruder any title, but prevents the owner from asserting his title, and forms a basis for applying to have the title registered in his name. That means that by itself twelve years occupation does not make an intruder the owner of the land; the owner can no longer sue the occupier and the owner’s title to land is extinguished (if unregistered) or is held by him as the legal owner but for the occupier as the cestui que trust whose legal ownership ripens only upon registration after a court order in that regard after determination of the claim and any other question on application by any person interested (Bridges v Mees (1957) Ch 475, Fairweather v St Marylebone Property co Ltd (1963) A C 510 H L; and the aforecited enactments).”*** 1. I have already found the Plaintiff has proved that her possession, occupation and use of the suit land was averse to the title of the Defendants and further, that the Plaintiff has demonstrated that she has been on the suit property for a period far exceeding the 12 years prescribed by statute. For these reasons, the 1st and 2nd Defendants’ titles had been extinguished way before the land was transferred to them or their late father, Cephania Wando Rawayo, thus they had no title or interests capable of being transferred to the 3rd Defendant. In any event, despite the purported transfer to the 3rd Defendant he likewise also held it subject to the Plaintiff’s claim for adverse possession. 2. As to why the Plaintiff did not file suit earlier when the 12 years lapsed, there is no requirement that a party must as of necessity move the court to claim orders under adverse possession immediately after completion of the 12-year period. It is an accepted principle of law, that a party may either lay claim to the land as the Plaintiff has done herein even after 50 years, or use the doctrine of adverse possession as a defence. Essentially there is no limitation period fixing a time limit within which one can claim adverse possession. It is my respectful view that it is irrelevant that the Plaintiff took no steps to claim the land through adverse possession in 1983 when the right accrued. Conversely, the pressure was on the Defendants and their predecessors in title to ensure that she had vacated the land before the lapse of the statutory 12-year period. 3. This court is aware that where the suit parcel is larger and the Claimant only seeks adverse possession over a portion, it is a requirement that the portion sought must be identifiable. The 1st Defendant admitted under cross-examination and also on re-examination that they sold the portion that the Plaintiff was cultivating. The parcel belonging to the Plaintiff is clearly distinguishable. I say so because the DW1 has been consistent on his testimony that they sold the Plaintiff’s land. This court can only reach the conclusion that he could only say that if he knew exactly the portion that the Plaintiff was occupying and/or utilising. 4. On the allegations that the Plaintiff had made a claim for fraud since it is trite that fraud must be particularised no such particulars have been set out and I will not delve on the issue. All in all, having duly considered the elements for adverse possession earlier set out, I am convinced that the Plaintiff herein has met them all. 5. On the 3rd Defendants plea of a bonafide purchaser for value without notice I think the foregoing analysis addresses this issue. The defence is not available to him in the circumstances. While the suit was sold to the 3rd Defendant, the said sale and transfer is and always was subject to the overriding interests held by the Plaintiff as an adverse possessor, which this court has formally recognised pursuant to provisions of the Limitation of Actions Act. The 3rd Defendant recourse lies with the 1st and 2nd Defendant. **What Reliefs Should This Court Issue?** 1. The reliefs sought by the Plaintiff have already been rehashed at the beginning of this judgement. Since the 1st Defendant admitted that the portion sold to the 3rd Defendant is what initially belonged to the Plaintiff, I see no need to revert to the mother title. The parcel claimed herein is known and has been properly identified. Consequently, the Plaintiff is entitled to the parcel of land known as South Ugenya/Yiro/3839. 2. Having made a finding that the Plaintiff is entitled to the order of adverse possession, this court has been invited to issue an order of permanent injunction, barring the Defendants from entering into her land. In **Kenya *Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR*** the pronounced itself as follows with regard to what constitutes a permanent injunction; - ***“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected”.*** 1. The Plaintiff having successfully proved her claim, it follows that her rights and proprietary interests over the land commend protection under the law. The Defendants have no interests being on the Plaintiff’s portion of land. Consequently, the Plaintiff is rightly entitled to the injunctive relief sought. **Who shall bear the costs of this suit?** 1. On costs, Section 27(1) of the Civil Procedure Act provides as follows: - ***27. Costs*** ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. The import of the foregoing provision is that, although the award of costs remains a matter within the discretion of the court, such discretion is guided by the established principle that a successful party in any suit or litigation should ordinarily be awarded for the costs incurred thereunder. Consequently, a departure from the general rule that costs follow the event must be justified by good and sufficient reasons, which ought to be discernible from the record. 2. Accordingly, having successfully prosecuted the present suit, the Plaintiff is entitled to the costs thereof. There being no exceptional or compelling circumstances warranting a departure from the general principle stipulated under Section 27 of the Civil Procedure Act, the said costs are hereby awarded to the Plaintiff, and will be borne by the 1st, and 2nd Defendants. **DISPOSITION** 1. Consequently, the following orders issue in determination of the Originating Summons dated 31st August, 2024: - 2. The Defendant’s right over 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/ 1161 (6.0HA) now divided to create plot No. 3839 as has been possessed by the Plaintiff for over 12 years be and is extinguished by adverse possession from the time the Plaintiff acquired the same. 3. The Plaintiff is hereby granted right of title to an area measuring 0.8 HA (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3839. 4. Pursuant to (2) above, The Land Registrar Ugenya Sub- County is hereby directed to transfer the title SOUTH UGENYA/YIRO/3839 directly to the Plaintiff, or in the alternative, to rectify the Register for the said parcel by removing the 3rd Defendant’s name and replacing it with the Plaintiff’s name within 60 days of this judgement 5. An order of permanent injunction be and is hereby issued against the Defendants permanently restraining them either by themselves, relatives, servants, workers, agents and/or any other persons claiming through them from interfering with the said defined portion of land known as LR No. SOUTH UGENYA/YIRO/3839 now belonging to the Plaintiff. 6. The Plaintiff shall have the costs of this suit to be borne by the 1st and 2nd Defendants. **Delivered** and **Dated** This **23rd** Day of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **23/07/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** N/A for the Plaintiff Mary Amolo Kitoyi the plaintiff N/A for 1st and 2nd Defendant Moses Jackson Abuonji Rawayo the 1st Defendant N/A for 3rd Defendant Court Assistant: Abiud Wekesa