https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4126

Tombo v Chunga & 4 others (Environment and Land Case E006 of 2023) [2026] KEELC 4126 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4126 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Case E006 of 2023 AE Dena, J July 2, 2026 Between Meshack Ouma Tombo Plaintiff and Phillip Bonyo Chunga 1st Defendant William Odhoch Chunga 2nd Defendant George Odhiambo Chunga 3rd Defendant Caren Awino Otieno 4th Defendant Philip Mango Chunga 5th Defendant Judgment 1.The Plaintiff commenced this suit by way of Originating summons against the Defendants claiming that he allegedly bought a portion of North Sakwa/Maranda/40 ('suit property') measuring 10 acres ('defined portion') from the defendants' father in 1982. That the only hindrance to a transfer into his name was that the defendants' father had died. The plaintiff's claim is that since then he has established a home therein and his occupation had been without force, secrecy peaceful and without interruption for over 40 years and none of the defendants are in occupation of any part of the suit property. 2.The Plaintiff avers that he does not have any blood relationship with the defendants. That the defendants who are the current registered owners of the suit property had started excising the suit property and disposing off portions to third parties. 3.The Plaintiff seeks the following reliefs; -1.That he is entitled to a declaration that he holds a beneficial interest under constructive trust in the defined portion of the suit property2.That upon such declaration an order is made that the defendants subdivide suit property and hive off the defined portion in his favor.3.General damages for interference caused by the defendants over the defined portion4.In the alternative the defined portion be vested in the plaintiff by dint of adverse possession. 4.The defendants responded to the above by way Defence and Counterclaim dated 20/4/2024 denying the plaintiffs claim for beneficial interest and adverse possession of the suit property including constructive trust and averred it is not tenable in law and fact. The plaintiffs claim premised upon the said sale agreement comprised in a declaration of sale dated 9/6/1982 contradicts the entire claim. Further that the defendants are amenable to general damages. 5.The defendants also a raised a preliminary objection which I will not rehash as the same was dismissed vide a ruling of this court dated 5/12/2024. 6.In the counterclaim the defendants aver that they lawfully and legally inherited the suit property from Romanus Chunga pursuant to Bondo Succession Cause No. 85 of 2017 and that the plaintiff was a stranger and trespasser thereon. That in spite of demands and notices to sue the plaintiff has failed to vacate, surrender vacant possession. 7.The defendants pray for judgement against the plaintiff fora.A permanent injunction to restrain the plaintiff, his duly authorised agents, servants, assigns and or personal representatives against taking possession, alienating, occupying, claiming ownership, transferring, disposing and or in any other manner claiming any interest in parcel North Sakwa/Maranda/40.b.A mandatory order do issue to compel the plaintiff his duly authorised agents, servants, assigns and or personal representatives to vacate and or surrender vacant possession in parcel North Sakwa/Maranda/40 to the Defendants/Counterclaimants.c.That prayers a) and b) above be enforced by the OCS Bondo Police Stationd.That General damages be awarded to the Defendants.e.Costs of the counterclaim. 8.The Plaintiff filed a Reply to Defence and Defence to Counterclaim dated 10/5/2024 and reiterated the averments in their claim. He averred he is the beneficial owner of the land and not the defendants. That the counterclaim as pleaded has no factual basis and should be dismissed. Hearing & Evidence Of The Parties 9.The suit was heard viva voce on 25/06/2025 and 29/10/2025. 10.The plaintiff Meshack Ouma Tombo testified as PW1 and adopted his witness statement dated 22/02/2024 and produced the documents in the list of documents dated 22/2/2024 as Pex 1-4. The Surveyors report dated 13/05/2024 was marked for identification. The witness statement reiterated the averments contained in the supporting affidavit and I will not rehash them. 11.On cross examination PW1 testified he was claiming the land based on the sale agreement dated 9/8/1982. He disagreed that his case is time barred though he agreed he filed it 40 years after the said sale agreement. He testified that Romano permitted him to take possession in 1982. He denied ever moving into the land with his relatives who thereafter moved out. He indicated he was not aware of the succession cause in Bondo. He only knew of Romanos death after he applied for a search as he was never informed of the same. He denied that before he brought in the surveyor, he didn’t know the size of the portion he occupies. He attended the chief baraza in 2021 and denied that he walked out. On being shown the letter dated 2/11/23 from the court he reiterated the contents of the declaration of sale and told the court he will pursue the claim both under sale and adverse possession. 12.PW2 was Eliud Okumu Ogembo a land surveyor. He told the court he was to visit the ground and confirm the acreage of the suit property and the defined portion. That his findings were the suit property was 28.5 Ha which tallied with the green card. The portion occupied by the plaintiff was 4 ha as per the declaration of sale. He explained the satellite imagery attached for the same as well as photos of a house he indicated was occupied by the plaintiff. He told the court he also undertook a search of the suit property which confirmed it was registered in the names of Philip Mango & Romanos Chunga Mango. 13.The witness sought to produce the Survey Report dated 12/5/2024. The same was produced (PW2 Ex 1) subject to the objection raised by counsel for the defendants that the photos and imagery be expunged for failure to comply with the provisions of section 78 and 106B (4) of the Evidence Act. 14.Upon cross examination PW2 testified that while he was instructed by the plaintiff to conduct the survey, he never showed him any court order that directed the survey to be undertaken. It was not standard practice that all affected people attend the survey. He was undertaking survey on the portion occupied by the plaintiff. He denied he was filling the gaps for his client case. He told the court he was only to establish the ground status vis vis the documents presented to him. On being shown the PID he conceded it did not bear a stamp of the land office because it was his own production/drawing. He told the court he used GPS to identify the portion occupied by the plaintiff. He conceded the white spots in the map were houses indicating there were other people in the land. 15.The witness conceded his report does not mention adverse possession and the findings do not feature the 4Ha occupied by the plaintiff or any graves or that he found houses and structures. 16.Philip Chunga the 1st defendant herein testified as DW1. He adopted his witness statement dated 4/6/2024 as his evidence in chief. He produced the documents listed in the list of documents dated 20/4/2024 as Dex 1-4. 17.The witness statement details the history of the suit property and how it passed on to the children of Philip Mango Chuka, then Romanus Chunga Mango culminating into 6 subdivisions after the confirmation of grant. That the Tombo family claimed interest in the land 3 years after succession. That they never objected to the proceedings. He testified that his father did not sell the land in 1982. DW1 testified that upon succession they had approached the Tombo family to have them agree with each beneficiary to accommodate them but upon being called to the chief baraza in this regard they walked out of the Baraza. That the plaintiff had lodged numerous cautions against the parcel which were removed by the land registrar for failure by them to proof interest. 18.DW1 testified that the letter dated 2/11/23 from the registrar High Court clarified that they could not get such a document in court. He testified he was not informed of the survey leading to the report produced by PW2. There was no court order permitting the survey to be done. He prayed for the court to grant him the orders sought in the counterclaim. 19.On cross examination the witness testified that he came to know the plaintiff in 2014 and he had not yet built his home on the land. On the letter from the High Court registrar, he stated the same did not assure him that the sale declaration existed. He conceded the same does not make reference to his name. That if the document was available the court would have found it. He stated he did not sue Meshack for eviction as he DW1 did not have grant from succession proceedings. Submissions 20.Parties filed and exchanged final submissions. Plaintiffs Submissions 21.In the submissions dated 27th November 2025 Counsel for the Plaintiff identified two issues for determination whether constructive constructive trust as an overriding interest has been established? and whether the plaintiff is entitled to the relief of adverse possession? 22.On the first issue - It is submitted that the plaintiff has proved constructive trust relationship which existed, between him and Mr Romanus Chunga the defendant’s father and that the said trust extended to the defendant even after Mr. Romanus ultimate demise. That there is overhelming evidence of occupation, possession and settlement of the Plaintiffs' over the suit land. Reliance is placed on the Supreme Court of Kenya decision Isack Kieba M’Inanga Vs Isaaya Iheuri lintari & Another SCoK l0 of 2015 which settled the guiding principles of customary trust. This occupation is also termed as an overriding interest within the meaning of section 28 of the Land Registration Act. 23.On the second issue it is asserted that that given the longevity of the plaintiff’s occupation of the suit land which has also been peaceful, uninterrupted and hostile to that of the registered owner, the claim by the plaintiffs for adverse possession has been established. At no point in time ever challenged the occupation and possession of the Plaintiff. They have never attempted to take over the suit land from the Plaintiffs. The fact that the Defendants' were registered as owners of the suit land pursuant to a succession cause it does not in any way ',. extinguish the Plaintiffs' rights. 24.The plaintiff relies on the cases of Mtana Lewa -v- Kahindi Ngala Mwangandi {2005) eKLR; and Grace Tesoimo Tarus & another v Sarah Rop & 2 others [20I8) eKLR, where it was held that "the death of a registered proprietor does not discontinue the possession and, the time does not stop running. The successors hold the land in trust for the adverse possessor if the same had been extinguished during the lifetime of the deceased or after his or her demise.', 25.The defendants’ submissions are dated 20/11/2025 and identify five issues as summarised here below; - 26.Whether the Agreement dated 9th August, 1982 is enforceable in law. It is submitted that this suit is premised upon a Declaration/Sale Agreement made on 9th June, 1982. Pursuant to section 7 of the Limitation of Action Act the Cause of Action lapsed on 9th June, 1994 ; that is 12 years after 9th June, 1982; the date of execution thereof. That the Court lacks the requisite jurisdiction. Having been based on contract the suit cannot transform into a claim under Adverse Possession. 27.It is urged that the Late Romanus Chunga having permitted the plaintiff to take Possession on the basis of the Declaration/Sale Agreement dated 9th June,1982 then this is permissive contrary to the doctrine of adverse possession. That based on the foregoing the Plaintiff did not acquire 4 Hectares of LR NO. Siaya/Maranda/40 by Adverse Possession. 28.Whether the survey Report dated 12th April, 2024 is admissible together with photographs/satellite images under Section 106B of the Evidence Act. – it is contended that the Survey Report and Images are not admissible as evidence. That for electronic evidence to be deemed admissible, it must be accompanied by a certificate in line with this provision. The court is referred to Section 78A and 106B of the Evidence Act, Sections 78A the said Act. Reliance is placed in William Odhiambo -vs- IEBC & 2 others [2013] eKLR. In any case, the Survey was undertaken after the Suit was filed without any express Order from this Honourable Court. 29.Whether the Plaintiff is a Trespasser. It is submitted that the Plaintiff is therefore a Trespasser amenable to pay General and Punitive Damages for breach of the Defendant's ownership of the Suit Property pursuant to the Defendants' Letters of Administration and Confirmation of Grant [Defence Exhibits 3(a),3(b) and 3(c)] as pleaded in the counterclaim. 30.It submitted the Suit should therefore be dismissed with costs while the Counterclaim be allowed as pleaded with costs. Analysis And Determination 31.I have perused and considered the pleadings, the oral testimonies of the witnesses who testified and the evidence adduced herein. I have equally perused and considered the written submissions by the Learned Advocates for the parties. The following issues commend determination.1.Whether the plaintiff has proved his claim for adverse possession on the suit property2.Whether constructive trust as an overriding interest has been established3.Whether the Defendants have proved the counterclaim to the required standard to warrant the grant of the orders sought.4.Who bears the costs of the suit and counterclaim? 32.The Plaintiffs claim is two-fold. That he purchased the suit property in 1982 from the defendant’s father Romanus Chunga who died in the year 2004 and took possession. The deceased died before the transfer of the land to the plaintiff. He claims a beneficiary interest under constructive trust as well as adverse possession by dint of his long stay in the portion of the suit property he allegedly bought. 33.The defendants oppose the claim stating that their father never sold the land and the plaintiff is termed as a trespasser. That they petitioned the court for grant of letters of administration for their father’s estate and upon confirmation of the grant the suit property was subdivided accordingly into 6 portions and distributed to the beneficiaries. That the plaintiff never raised any objection during the succession proceedings as creditor of the deceased estate. The defendants have raised a counterclaim for orders of permanent injunction against the plaintiff and eviction. 34.The doctrine of adverse possession is premised on the provisions Sections 7, 13, 17 and 38 of the Limitation of Actions Act Chapter 22 of the Laws of Kenya 35.Section 7 of the Act 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.” 36.Section 13 reads; -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 land2.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. 37.The procedure for seeking relief on a claim based on adverse possession is provided under the provisions of Section 38 of the Act and Order 37 of the Civil Procedure Rules, 2010 38.Section 38 of the Act allows a claimant to apply to Court for orders of adverse possession and provides that:“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.” 39.The courts have also pronounced themselves on the doctrine and have provided guidance on the application of the doctrine as follows;- 40.In the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] eKLR the court of appeal had this to say; -“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.” 41.The Court of Appeal in Kisumu Civ App. No. 110 of 2016 Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR opined that a person claiming adverse possession must establish the following;(a) On what date he came into possession. (b)What was the nature of his possession?(c)Whether the fact of his possession was known to the other party.(d)For how long his possession has continued and(e)That the possession was open and undisturbed for the requisite 12 years. 42.The court will be guided accordingly. 43.The burden of proof was upon the plaintiff to prove his claim on balance of probabilities by demonstrating he has met the threshold outlined above to the required standard. This is the burden of proof placed on whoever alleges- See section 107 of the Evidence Act Cap 80 of the Laws of Kenya. 44.The plaintiff has sued the defendants as administrators of the estate of Philip Mango from whom he allegedly bought a portion of the suit property. He was to demonstrate that the land is registered in the name of a third party. PW1 produced a green card for parcel North Sakwa Maranda/40 opened on 1/8/78 showing Romanus Chunga Mango having been registered as proprietor 8/6/82. PW1 further produced a ‘DECLARATION’ signed by Romanus Chunga and Meshack Ouma Tombo witnessed on 9/6/1982 before District Magistrate Siaya. This document reveals that Romanus sold to Meshack sold a portion measuring 10 acres of the above property for a consideration of Kshs 18,000/-. The declaration alludes that Romanus has completely surrendered the portion to Meshack. 45The defendant’s case is that their father never sold the land and the said declaration is a forgery. They rely on a letter dated 2/11/2023 from Office of the Deputy Registrar ELC Siaya where the court indicates it is unable to confirm or deny its authenticity. 46Counsel for the Defendant contends that the fact that there was an alleged sale agreement negates the very concept of adverse possession since the entry should not be with permission of the owner of the suit property. From the case law cited the claimant must demonstrate that his entry into the land is non-permissive or non-consensual. 47The question whether a plaintiff can claim adverse possession based on agreement for sale has been clarified by the courts as follows; - 48In the case of Peter Mbiri Michuki vs Samuel Mugo Michuki (2014) eKLR, the Court of Appeal while referring to the case of Public Trustee -v- Wanduru, (1984) KLR 314 at 319 held that adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession and that purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run. 49In the case of Onzere v Nanyama [2024] KEELC 1392 (KLR) faced with allegations that the land was sold illegally the court took the view that the parameters that operationalize the doctrine of Adverse Possession do not allow any outcome other than that of loss of land through adverse possession. 50From the foregoing therefore it emerges that firstly a claim of adverse possession based on a sale agreement is properly raised. Secondly as long as there is dispossession for the requisite statutory period within the conditions enunciated in the cases cited herein then it does not matter whether or not there exists a valid sale agreement. Consequently, I will not overemphasise the challenge raised on the sale agreement as a basis for defeating the plaintiffs claim relating to adverse possession. 51I must now interrogate requirement on possession. From the proceedings I have noted that it is not in dispute that to date, the plaintiff is in occupation in the suit property. PW1 testified in cross examination that the deceased Romano permitted him to take possession in 1982 and he did establish a homestead in the suit property and that this makes a period of over 40 years. This period has not been controverted by the defendants. Infact DW1 evidence seems to corroborate the fact that the Plaintiff and his family has been living in the suit property with the knowledge of the defendants except that some of his relatives left the suit property subsequently. PW1 reiterated in cross examination that he had not sued on behalf of his brothers/relatives. 52DW1 further evidence is that the Tombo family claimed interest in the land 3 years after succession. DW1 produced a Certificate of Confirmation of grant dated 26/2/2018 meaning they allege the plaintiff raised a claim over the portion in 2021 or thereabouts. But I must state that as at the time of the succession proceedings the plaintiff had already been on the land for over 12 years. I say so for the reason that it is clear that during the lifetime of the defendants deceased father from 1982 when the appellant occupied the suit land upto to the year of death in 2004 the plaintiff had occupied the land for approximately (22 years). 53DW1 testified that the plaintiff did not object to the succession but in my view, this is not a consideration for purposes of adverse possession. The fact that succession was successfully undertaken does not displace a claim for adverse possession. The running of time under the doctrine of adverse possession is cumulative against both the original owner and the successor(s) in title. It has been established that adverse possession can run against the estate of a deceased person and this what has exactly happened in this case. This position was affirmed by the Court of Appeal in Peter Thuo Kairu v Kuria Gacheru [1988] 2 KAR 111 where the Court held that a claim for adverse possession subsists not only against the present holders but also their predecessors in title. 54Likewise, in Githu v Ndeete [1984] KLR 776 [1986], the Court of Appeal held that “the mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.” 55The above analysis speaks to the statutory period of 12 years and which it is my finding has been met. It also clear that the defendants were at all times aware of the plaintiff’s occupation and did nothing about it until after the succession proceedings. DW1 testified in cross examination that they never filed any proceedings to evict the plaintiff. Instead, it was his testimony that they approached the plaintiff and asked him to negotiate with the individual beneficiaries to settle him. This further shows that the plaintiff occupation on the suit property has been open and adverse. 56I must also settle the issue of the size of land occupied by the Plaintiff. PW2 produced in evidence a Surveyors Report dated 12/05/2024. Attached to the report is a satellite image (Figure 2(b) showing the area occupied by Meshack Tombo being 4HA. PW2 a licensesd surveyor confirms he attended the suit property and corroborated that indeed the plaintiff occupies 4acres and explained how he was able to arrive at the same. 57Moreover as concerns the identity and size of the occupied portion of land alleged to be the subject of adverse possession the court in Gatimu Kinguru vs Muya Gathangi (1976) KLR 253 observed that:“the land or portion of land adversely possessed must be definitely identified, defined or at least an identifiable portion with a clear boundary…” 58Guided by the above dictum in my view even in the absence of the satellite image, the drawing in figure 1(b) of the survey report clearly identifies the occupied area and defines it specifically giving its measurements and boundaries. It has been clearly identified in my view. The defendants never produced their own survey report to show that PW1 was occupying a lesser size. 59It has also been argued that the survey report was prepared and filed during the pendency of the proceedings with no orders of the court authorising such filing. However, the proceedings show that on 4/03/2024 Ms Odoyo informed the court they had filed all their documents except the survey report but the surveyor had visited site the previous week and sought for more time to file an expert report and which was granted. The record bears that the 1st defendant was present in court. Moreover, when the parties appeared before me on 1/4/2025 the only objection Mr. Jaoko Advocate for the Defendants raised was to have the report produced by the maker and not that it was not authorised by the court. I will say no more. 60I has been urged that the survey Report and the photographs/satellite images under Section 106B of the Evidence Act are not admissible as evidence. The photos attached in the survey report are impugned for want of compliance with the provisions of section 78A and 106 of the Evidence Act. These provisions were outlined in Rapando v Ojwang (Sued as legal representative of Oundo Malo - Deceased) & 5 others [2025] KEELC 996 (KLR) thus; -8.‘Although Mr Were has extensively relied on Section 78 of the Evidence Act, Sections 78A and 106B of the said Act provide that:78A “Admissibility of electronic and digital evidence:1.In any legal proceedings, electronic messages and digital material shall be admissible as evidence.2.The Court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.3.In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to –a.the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;b.the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;c.the manner in which the originator of the electronic and digital evidence was identified; andd.any other relevant factor.4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.” Emphasis mine.Section 106 B (4) provides that:“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following-a.identifying the electronic record containing the statement and describing the manner in which it was produced;b.giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;c.dealing with any matters to which conditions mentioned in subsection (2) relate; andd.purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.” Emphasis mine.What the Plaintiff seeks to produce herein are photographs which are defined in Section 3 of the same Act as:“…. an image created by light falling on a light sensitive surface, either photographic film or an electronic medium and made visible and permanent by chemical treatment or stored digitally.”So clearly, photographs fall under the electronic record for which a certificate is required before the same can be produced under Sections 78A and 106 B (4) of the Evidence Act and which must therefore be read conjunctively. There ought to have been availed the requisite certificate indicating the identity of the person(s) who took the photographs.Taking all the above into account, I find that there was no compliance with the relevant law as to production of electronic evidence and in particular the photographs marked as A, B, C, D, E, F, G and H and which are annexed to the Plaintiff’s further list of documents dated 2nd October 2023. The same are hereby expunged from the record and returned to the Plaintiff. The oral objection raised by the Defendant’s counsel on 19th November 2024 is hereby up-held. 61Applying the above law to the present case, the court notes that no certificate has been produced in compliance with the above requirements and therefore I find the photos annexed to the survey report inadmissible. However, having found so it is my view that this does not defeat the plaintiffs claim, his occupation on the portion of the property having not been denied by the defendants except that they term him as a trespasser. 62.Was the occupation peaceful and continuous for the period. PW1 evidence is that trouble started after the Defendant obtained grant of letters of administration and which has been confirmed by DW1 whose evidence was that upon confirmation of grant they subdivided the land and tried to convince the plaintiffs family to vacate. In any case have already noted that by then the plaintiffs claim had already crystalised. I further note that even their father never removed the plaintiff from the suit property. 63.It is therefore the finding of this court that the plaintiff has proved all the elements to support the claim of adverse possession on a balance of probabilities. Whether constructive trust as an overriding interest has been established? 64.The plaintiff also claims he is entitled to a declaration that he holds a beneficial interest under constructive trust in the portion occupied by him. That this stems from the relationship he had with the deceased following the purchase of the portion and the long occupation thereof – an equitable interest and which must be protected. Having found that the plaintiff is entitled to the portion herein I do not find it necessary to discuss the merits of the claim on constructive trust. Whether the Defendants have proved the counterclaim to the required standard to warrant the grant of the orders sought. 65.The defendant’s term the plaintiff as a trespasser in the suit property and want him evicted from the suit premises. In view of my finding that the plaintiff has proved his case on the claim for adverse possession of the portion of land occupied by him then the counterclaim must fail. I will only observe that DW1 testified in cross examination that they have never sued the plaintiff to evict him from the suit property. 66.Is the Plaintiff entitled to the orders sought and or what orders are appropriate in the circumstances of this case? The claim for general damages shall be declined for the reason that I have not been led to any proposals in this regard. The orders that should issue in my view will relate to the proved claim of adverse possession of the portion. The provisions of Section 13 (5) of this court’s Act empowers me to make any order and grant any relief as the court deems fit and just for the ends of justice to be met. 67.The upshot of the foregoing is that this court enters judgement for the plaintiff against the defendants in the following terms1.That the counterclaim is dismissed with no orders as to costs.2.That the plaintiff herein be and is hereby declared to be entitled by way of adverse possession of over 12 years of the portion measuring approximately 4 Hectares/10 acres in land parcel No. North Sakwa/Maranda/40.3.An order to issue directing the above portion as identified in Figure 1(b) of the Surveyors report dated 12th May 2024 and as shall be re-authenticated by the District Land Surveyor in charge of North Sakwa/Maranda area in the presence of all the parties be hived off from the parcel No. North Sakwa/Maranda/40 within 90 days of the date of this judgement.4.That upon order No. 3 above the Land Registrar in charge North Sakwa/Maranda area to register the plaintiff Meshack Ouma Tombo as the absolute proprietor of the hived portion without further reference to the Defendants5.That the costs of order 3 above shall be borne by the Plaintiff.6.That each party shall bear their own costs of this suit. DELIVERED AND DATED THIS 2ND DAY OF JULY 2026HON. LADY JUSTICE A.E. DENAJUDGE2/07/2026Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:No appearance for plaintiffMr. Achola Jaoko for DefendantsAbiud Wekesa Court Assistant