https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3862

Obonyo v Adiwa (Enviromental and Land Originating Summons E001 of 2025) [2026] KEELC 3862 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEELC 3862 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Enviromental and Land Originating Summons E001 of 2025 AE Dena, J June 24, 2026 Between Joas Juma Obonyo Applicant and Gaitano Aked Adiwa Respondent Judgment 1.Joash Juma Obonyo the applicant commenced this suit by way of Originating summons dated 3/03/2025. The Applicant, swore an Affidavit on 3/03/2025 in support of the same wherein he averred that parcel number Uholo Tingare 476 (suit property) was in the names of the Respondent Gaitano Aked Adiwa. 2 .The applicant deponed that at the time the respondent took ownership of the land, he was already in occupation of the land and had constructed his home on the land and cultivating part of it and planted trees on the land. 3 .He added that he is the son to Obonyo and that the land belonged to one Mahanga Obara who was the uncle to his father. The uncle was a Samia from Uganda who left the land to his sister Mrs Monica Auma who cultivated the land till her death in 1985 and thereafter the land was subdivided amongst her sons namely Musewe Oyuoma; Manga Oyuoma And Obonyo Oyuoma the applicant’s father. 4 .According to the applicant he inherited the shamba from his father and settled on the same since 2019 where he also buried his late wife and daughter. That he had no issues on the land till 2022 when his cousin informed him that the Respondent was not only claiming ownership of the subject land but had registered it under his names. 5 .The applicant states that the Respondent has illegally taken Title over his land and which the applicant has known as home. That the area chief has tried to sort out the issue but in most occasions the respondent has been unruly and uncooperative. He seeks the courts intervention since he has possession but no title and which is illegally registered to the respondent. That he has used the parcel of land adversely to the rights of the registered owner the Respondent. That occupation of the suit land has extinguished the respondents title (if nay) by dint of statute of Limitation of actions. 6 .The applicant therefore seeks the following reliefs 1.Land parcel number Uholo / Tingare / 476 be declared as his by way of adverse possession. 2.A declaration that the defendant has no rights over the subject land. 3.A declaration that the plaintiff is entitled to be registered as the proprietor of Uholo Tingare 476. 4.A permanent injunction restraining the Defendant by himself, agents' servants and or employees from using, entering into, alienating, disposing off, selling, transferring, charging, leasing, pledging, building upon, wasting and in any other manner whether or whosoever dealing or interfering with plaintiffs peaceful and quiet possession of % share of the suit parcel number Uholo Tingare 467. 5.An order directing the Executive officer of this court, to sign the necessary papers to effect transfer and registration of the suit property in Favor of the Applicant, if the Respondent fails to do so; and 6.A Title Deed in respect of land Uholo Tingare 476 be issued by the Land Registrar Ukwala lands office in the names of the Plaintiff. 7.Costs of the suit 7 .The suit is defended by the replying affidavit of the respondent dated 28/05/2025. He admits that the respondent is the son of the late Obonyo Oyuoма. He clarifies that the applicant encroached into and erected structures inside Uholo/Tingare/476 in the year 2019 without his authority or justification. He avers that the applicant’s possession has not been quiet and notorious as there has been several cases at the chief's office and other authorities since the applicant’s encroachment. 8.According to the respondent, the applicant is an encroacher and an opportunist who is not content with his own land LR: Uholo/Tingare/551 and wants to mislead the court into sanitizing his ill motive of an intended dispossessing the respondent of LR: Uholo/Tingare/476. 9 .The respondent further avers that at all the relevant times between parties and even before this suit, he has been the sole legal owner of LR: Uholo/Tingare/476. That the applicant has forever been the rightful owner of the land parcel known as LR: Uholo/Tingare/551 currently registered in the names of his deceased father. However, because of greed, the applicant, did encroach and constructed structures inside the suit land LR: Uholo/Tingare/476 belonging to me without any color of right or justification and that the said encroachment and the illegal continued utilization of the same against the respondent’s wish is a violation of his rights and is punishable by law. 10 .The respondents asserts that the encroachment was done in the year 2019 and they have had several quarrels and cases before several authorities hence the possession has been hostile and forceful. 11 .The respondent prays that the application dated 3rd March 2025 be dismissed and the court is invited to proceed make judgement against the applicant Joas Juma Obonyo for the following orders; -1.That The Applicant either by himself, family members, relatives or any one acting on his behalf, be and are hereby permanently evicted from LR:Uholo/Tingare/4762.That the costs of this application be provided for. 12 .The respondent in addition to the above filed a counterclaim which is discussed later in this judgement. Hearing And Evidence Of The Parties 13 .The OS was converted into a plaint and the replying affidavit thereto as the defence. The matter proceeded viva voce. Applicants Evidence 14 .The applicant testified as PW1, adopted his affidavit sworn in support of the OS as his evidence in chief. He also produced the Minutes of 12/02/2025 annexed therein as his evidence Pex 1. PW1 added that he is a resident of Ulwan and that he was in court of because of parcel Uholo/Tingare/476. That he has lived therein for 16 years registered in the name of the respondent who has never lived in it or done anything therein. That there was a sitting with other villagers including the village elder but they could not resolve the issue for the reason that the respondent wanted him to buy the land from him which he PW1 did not agree with as he could not buy his grandfather’s land. 15 .On being shown the title produced by the defendant he testified that as 25/8/2023 when the title was issued to the defendant, he was already in occupation of the suit property. He learnt of the registration through his cousin Lawrence Ogutta who is his witness in the matter. That the Defendant has never obtained eviction orders against him. He asked the court to cancel the defendants title and have it registered in his name. 16 .Cross examined PW1 testified that he used to live in his grandfather’s land before he came to the suit property. He then inherited the suit property which belonged to his father and which was the only land his father owned. He conceded that plot Uholo/Tingare/551 is registered on 17/2/1970 in his late father’s name and his father’s brother. That based on the green card this was the same date for registration of the suit property in the name of AKED ADIWA who is the same person as Gaitano. That the entry dated 25/8/2023 was for correction of name. He conceded the defendant was 33 years old in 1970 while he was 3 years old. He added that currently there was no one living in his grandfathers except john Odek who was tilling the same. 17 .PW1 told the court he has not inherited his grandfathers land because it has already been inherited by others. That he inherited the suit property from Monica Ouma his grandmother as his father died before her. He agreed the green card for the suit property did not have any entries relating to his grandfather or Monica. He insisted the land was left for him and he lives with Beatrice Otieno to whom he sold a portion in 1994 but has not yet carved out the portion for her. That though he had produced one set of minutes for the meeting dated 12/3/2025 there had been meetings attended by the same parties in 2022 though he had produced the minutes. 18 .The plaintiff called Lawrence Oguttu to testify in support of his case as PW2. He adopted his witness statement dated 19/9/2025 as his evidence in chief. he testified that the plaintiff is his cousin and has lived in the suit property. That the defendant is also a relative. He told the court he is surprised that the defendant holds title to the suit property since the land belongs to the plaintiff. 19 .Upon cross examination PW2 indicated that the plaintiff has been the owner of the suit property for over 40 years though he only constructed in 2019. That the plaintiff and the witnesses father never lived in the suit property but the family land with a cousin called Joel Ogola. The two were also registered as owners of plot 551 which he hesitantly stated PW1 did not know of. Asked whether it was right for the plaintiff to inherit his father’s portion of 551 the witness asserted that the plaintiff has already inherited the suit property which is his inheritance. 20 .PW3 was Joel Ogola. He adopted his witness statement as his evidence in chief. He told the court the plaintiff is the owner of the suit property where he lives. That the defendant lives very far from the suit property and has never come to remove the plaintiff from the suit property. That the defendant has no rights over the suit property. 21 .On being cross examined PW3 testified that the plaintiff has lived on the suit property since he was a child. He agreed that the defendants father participated in showing Beatrice the portion she was sold. On the meeting held on 12/2/2025 the witness confirmed he attended, that the chief had previously visited the plaintiff on land issues though he could not remember the year. 22 .Beatrice Odera testified as PW4. She told the court the plaintiff sold her land in 1994 when he used to live on the land where he is todate. PW4 testified that the defendant came to remove them from the land in 2023 where they had lived peacefully. She was not aware why the defendant claims ownership of land. She was not a relative to either of the parties. 23 .Upon cross examination PW4 testified that she bought two and half acres and the plaintiff remained with a part of the land almost the same size though she stated she did not know the entire size of the suit property. She asserted that in December 2023 the defendant came with a gang to remove her from the land yet they had not had any issue before 2023. That there had never been any meeting at the chief before 2023 though she was aware of the meeting held on 12/2/2025 which she attended. She told the court she had been to the chiefs’ office twice upon summons. 24 .With the above the plaintiffs’ case was marked as closed. Defendants Evidence 25 .The Defendant Gitano Aked Adiwa testified as DW1. He adopted his replying affidavit and witness statement both dated 28/5/2025 as his evidence in chief. He reiterated that he has also sued the plaintiff and wants the court to remove him from the land and costs of the suit. He produced the document in the list of documents adopted 28/5/2025 Dex 1-5 as his evidence. 26 .On cross examination DW1 testified that though he holds title deed for the suit property issued in 1970 he has never lived in the same. He lives in his father’s land. The suit property is occupied by the plaintiff and PW4. The witness stated he tried to remove them from the same several times though he could not remember the dates. He had been summoned to the chief twice. According to him the plaintiff and PW4 had stayed on the land for only 7 years. On the minutes dated 12/2/2025 he testified that the chief advised them to resolve the issue amicably as regards refund of money. He clarified in re-examination that the plaintiff started living in the suit property in 2019. Submissions 27 .The court directed parties to file final written submissions. However only the applicant filed submissions dated 6/4/2026. 28 .Setting out the criteria and conditions for one to be granted rights of adverse possession as laid out in the case of Elmms Vs Heard (Environment & Land Case 135 of 2022) (2025) KEELC 3155 (KLR) (4 April 2025) (Judgment) namely The subject land must be registered in the names of a person other than the applicant; There must be an open and exclusive possession of that land in an adverse manner to the title of the owner and there must be a continuous occupation of the land by the applicant in excess of twelve years uninterrupted. Reliance was also placed in Kweyu Vs. Omutut (1990) KLR 709 on animus possidendi and exclusive possession. 29.Evaluating the above criteria vis a vis the evidence adduced it is submitted that the plaintiff has met the threshold. Further that a registered owner who fails to protect their property from squatters or trespassers for over 12 years has lost their rights, regardless of holding a title deed. A title deed alone does not protect a holder if another party has a better claim or has acquired ownership through adverse possession having stayed on the subject land for over 12 years without consent or interruptions. It is submitted that as at 23/08/2023 when the title was issued the applicant had been in possession for over 30 years. Analysis And Determination 30 .I have considered the pleadings, the evidence led both oral and documentary and the submissions filed on behalf of the plaintiff. Two main issues commend determination 1) whether the Applicant has acquired the suit property through adverse possession, and 2) Whether the counterclaim is merited. Whether the Applicant has acquired the suit property through adverse possession, 31 .The plaintiff’s claim is for adverse possession. I will therefore lay out the governing legal framework for the guidance of the court. Adverse possession is grounded in sections 7, 13, and 38 of the Limitation of Actions Act, (Cap 22) as follows; - 32 .The provisions of Section 7 read; -“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 is first accrued to some person through whom he claims, to that person”. 33 .Section 13“(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 in this Act referred to as adverse possession) and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases 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 purposes 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.” 34 .The provisions Section 38 read; -“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.” 35 .In the case of Ongwen & another v Keya & another (Environment & Land Case E027 of 2021) [2023] KEELC 279 (KLR) the court had this to say about the doctrine; - 29.This right to be adverse to land does not automatically accrue unless the person in whom this right has accrued takes action. Section 38 of the Act gives authority to the claimant to apply to Court for orders of adverse possession. See the findings of the Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR where it held; 30.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 nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 36 .In Mate Gitabi vs Jane Kabubu Muga alias Jane Kaburu Muga & 3 Others [2017] eKLR, the Court of Appeal stated thus:“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 secrecy, without force, 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 maxim nec vi, nec clam, nec precario…” 37 .Arising from the provisions of the law and judicial precedents above I have decanted a number of requirements that must be met by a litigant claiming adverse possession.1.The land must be registered in the name of a third party. A known owner.2.There must be possession which possession ought to be adverse and to the exclusion of the owner meaning the title holder must be dispossed3.The possession must be without permission of the owner for a continuous/uninterrupted period of 12 years4.The owner of the land fails or neglects to take action against the ‘intruder’ 38 .Applying the above to the present case I will proceed to consider if all the above tenets have been met by the Applicant since the burden of proof lies with him. – See section 107 of the Evidence Act Chapter 80 of the Laws of Kenya. 39 .In the current scenario, the Applicant claims that since the year 2019, he has occupied the suit property where he constructed a home and cultivated a portion and has also planted trees. According to the pleading the land belonged to Mahanga Obara his father’s uncle who left it to his sister Monica and after her death in 1985 was subdivided amongst her 3 sons which included the deceased father. 40 .PW1 produced Minutes of a meeting held on 12/2/2025 held at the chiefs North Oholo Office. The minutes show the meeting was in respect of land (Uholo/Tingare/476) dispute between Gaitano Aked Adiwa (sued as the defendant herein) and Joas Obonyo the plaintiff herein. It was his evidence that the suit property is registered in the name of the respondent. 41 .As already seen the first requirement is that the land must be registered in the name of the person against whom the claim is made. The title to the suit property was produced by the defendant. It is dated 25th August 2023 and issued to Gaitano Aked Adiwa and who is the defendant herein. This satisfies the criteria on registration. 42 .The burden of proof was also upon the plaintiff to prove that he has occupied the property for a period of 12 years since such registration. The Green Card produced by the defendant shows that the suit property was first registered on 17/2/70 to Aked Adiwa. There was then a change of name to Gaitano Aked Adiwa. There was no contestation that Aked Adiwa and Gaitano Aked Adiwa were one and the same person and I was also convinced likewise. PW1 agreed in cross examination that in 1970 the defendant was 33 years old meaning he must have participated in land adjudication. 43 .PW1 evidence is that he entered the land in 2019 though he did not specify the exact month. The instant suit was filed on 3/3/2025 therefore making a period of at least 6 years. While PW2 told the court in cross examination that the plaintiff has been the owner of the suit property for over 40 years he emphasised that he only constructed in 2019. PW2 added that the plaintiff never lived in the suit property but the family land with a cousin called Joel Ogola which to me supports the 2019 position. It is noteworthy that time started running from the time of occupation which in my view is what would amount to dispossession which is the year 2019 pleaded and alluded to by PW1. 44 .PW4 evidence is that she had known the plaintiff as the owner of the land which he even sold to her in 1994. However, the mere fact that PW1 sold land to her is not helpful for purposes of adverse possession. Infact, it negates the very concept of adverse possession because an owner of land cannot claim adverse possession over his own land – see Omollo v Nyamunga [2025] KEELC 120 (KLR) discussed later in this judgement. Moreover, PW4 is not a substantive plaintiff claiming adverse possession of the portion sold to her. 45 .It is the finding of this court that the statutory requirement of 12 years occupation has not been met. 46 .Moreover during his evidence in chief PW1 told the court that the matter could not be amicably resolved as directed by the Chief since the defendants offered to sell him the land but he could not agree to buy his grandfather’s land. This therefore means he did not recognise the defendant’s title. PW2 Lawrence Ogutta in his witness statement dated 19/09/2025 and which he adopted as his evidence in chief averred that the title issued to Aked is illegal and may have been influenced by his father who was a land adjudication officer between 1968 and 1970. All these arguments would form a basis for impeaching the title if proved but not under a suit for adverse possession. 47 .As long as the plaintiff did not recognise the title of the registered proprietor he cannot succeed on a claim for adverse possession – see the holding in the case of Haro Yonda Juaje –vs- Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR discussed later in this judgement. 48 .Additionally the applicants plead at paragraph 7 that he inherited the suit property from his father. The minutes produced also attest to the historical background of the land. On this basis alone the claim for adverse possession would fail. I’m further guided by the case of Omollo v Nyamunga [2025] KEELC 120 (KLR) where the learned judge stated thus; -‘It is the plaintiff’s testimony that he was given the suit land by his father were to be believed, it means that he has been on the suit land as owner, having been given the land by his father. He cannot therefore sustain a claim of adverse possession over his own land. I agree with the holding of the court in Haro Yonda Juaje –vs- Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR where the court stated that;“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.” Emphasis is mine. 49 .I think I have said enough to demonstrate that the plaintiffs claim for adverse possession has not been proved. Whether the counterclaim is merited. 50 .In his replying affidavit to the OS herein the Defendant denied the allegations contained in the applicant’s supporting affidavit to the OS except that indeed the applicant is the son of the late Obonyo Oyuoma. He averred that that he has always been the legal owner and registered proprietor of the suit property parcel 476 which the applicant had encroached upon in the year 2019. He prayed that the applicants claim be dismissed and the court should proceed to make judgement against the applicant for orders that the applicant be evicted from the suit property and the costs of the application be provided for. 51 .The respondent together with replying affidavit also filed Statement of Counterclaim dated 28th May 2025 which reiterated the averments in the replying affidavit and prayed that the respondent be permanently evicted and the structures erected thereon be demolished. He also sought interalia orders of permanent injunction, mesne profits. 52 .It is trite that a counterclaim is deemed as an independent suit. It was expected therefore that the plaintiff would respond to the same. There was no response to the counterclaim. It is also noteworthy that DW1 reiterated during his evidence in chief that he had also sued the plaintiff and he wanted the court to remove him. 53 .Having noted the foregoing the Defendant produced in evidence a title deed dated 25/8/2023 for parcel Uholo/Tingare/476 certifying that Gaitano Akel Adima as the absolute registered proprietor. He adduced a copy of green card for the suit property confirmation the said registration on 25/8/2023. Entry No. 1 of the said green card shows the 1st entry of 17/2/70 in the name of Aked Adiwa. 54 .I have already noted earlier in this judgement that the entry of 25/8/23 was pursuant to change of name. DW1 testified that Aked Adiwa and himself are one and the same person. PW1 conceded to this in cross examination. The only contestation is that the same was obtained fraudulently which allegations could not be prosecuted under the claim for adverse possession. The plaintiff did also not respond to the counterclaim. 55 .A title was produced. The legal implications of such registration were aptly enumerated in the case of Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another [2017] eKLR by Justice Sila Munyao (now JA) thus; - 17.It has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows: -RLA S.27. Subject to this Act -(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.RTA S.23 (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.(2)A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original. 18.The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows: -26.(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original. 56 .There was no proper challenge before me to the title produced and there is no basis upon which to impeach it. I’m further guided by the holding in Wafula & another v Mulunda (Civil Appeal 1 of 2018) [2022] KECA 1145 (KLR) (21 October 2022) (Judgment) where the Court of Appeal stated thus; -‘The learned judge correctly applied his mind on the uncontroverted evidence presented by the respondent. The respondent produced the original title of the suit property and a copy of the green card which are prima facie proof that he is the proprietor of the suit property. This Court has held numerous times that a certificate of title is conclusive evidence that the person named therein is the absolute and indefeasible owner thereof unless the title is challenged on the ground of fraud or misrepresentation in which the holder is complicit. See Embakasi Properties Limited & Another Vs. Commissioner of Lands & another[2019] eKLR.’ 57 .Based on the foregoing it is my finding that the Defendant Gaitano Aked Adiwa is the prima facie proprietor of the suit property. 58 .Is the Defendant entitled to the prayers in the counterclaim? The prayers sought in the Counterclaim are as follows; -a.That the Respondent either by himself, family members, relatives or any one acting on his behalf, be and are hereby permanently evicted from LR:Uholo/Tingare/476 belonging to the applicant and that the structures erected by them thereon be demolished.b.That the respondent either by himself, family members, relatives or any one acting on his behalf, be and are hereby permanently restrained from in any manner; entering, occupying, developing, encroaching into, ploughing, trespassing, or dealing with the suit land namely: LR:Uholo/Tingare/476 belonging to the applicant.c.That the respondent do pay to the applicant immense(sic) profits plus interests as calculated by this honorable court dating back to the year 2019 for illegal occupancy.d.That the OCS Sigomre Police Station to oversee and ensure enforcement of orders a & b above and to provide maximum security.e.Costs 59 .In view of the failure by the plaintiff to prove the claim for adverse possession and considering the above finding on the counterclaim therefore the Defendant is entitled to prayer a) and b). It is not in dispute that the plaintiff sued as respondent in the counterclaim entered the suit premises in 2019 and was confirmed by the defendant. His evidence in cross examination is that currently Joash Juma Obonyo and Beatrice are in occupation of the suit property. In this regard he also produced a demand notice dated 14/01/2025 addressed to both of them. 60 .It is however noteworthy that the defendant did not join Beatrice Awino (PW4) as a party to the counterclaim and the said orders cannot issue against her. I will also not extend the application of the orders to the relatives since this is too wide. The court shall limit the scope to JOAS and his immediate family. 61 .The respondent also sought for orders of mesne profits. These have not been specifically particularised and proved and I will therefore not consider the prayer. In this regard I will rely on the case of Karanja Mbugua & another v Marybin Holding Co. Ltd [2014] eKLR where the court stated as follows with regard to mesne profits: -This court is alive to the legal requirement that mesne profits, being special damages must not only be pleaded but also proved, as shown by the provisions of Order 21, Rule 13 of Civil Procedure Act. The said provisions state as follows with regard to a decree for possession and mesne profits:…………………….’ 62 .The upshot of the foregoing is that the plaintiff has failed to prove the claim for adverse possession of the suit property against the Defendant and the suit is hereby dismissed. 63 .Judgement be and is hereby entered for the plaintiff in the Counterclaim GAITANO AKED ADIWA against JOAS JUMA OBONYO in the following terms; -a.That the Respondent JOAS JUMA OBONYO either by himself and his immediate family members be evicted from LR:Uholo/Tingare/476 belonging to GAITANO AKED ADIWA and the structures erected by them thereon be demolished.b.That the respondent JOAS JUMA OBONYO either by himself and his immediate family members, be and are hereby permanently restrained from in any manner; entering, occupying, developing, encroaching into, ploughing, trespassing, or dealing with the suit land namely: LR:Uholo/Tingare/476.c.That the orders in a) & b) shall be affected upon expiry of 90 days of this judgement and during which period Joas Juma Obonyo and his immediate family members are at liberty to voluntary remove and or demolish their structures.d.That failure of order c ) above the OCS Sigomre Police Station shall provide security during the enforcement of orders a) above.e.THAT each party shall bear their own costs of the suit and the counterclaimOrders accordingly DELIVERED AND DATED THIS 24 DAY OF JUNE 2026HON. LADY JUSTICE A.E. DENAJUDGE24/06/2026Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Ondego for the PlaintiffMr. Ochido H/B for Mr. Odera for DefendantCourt Assistant: Abiud Wekesa JUDGMENT ENVIRONMENT SIAYA S. O E001 OF 2025 0