https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3022

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT SIAYA** **ELC NO 13 OF 2025 (O.S)** **IN THE MATTER OF LAND REGISTRATION ACT, 2012.** AND **IN THE MATTER OF SECTIONS 7, 17 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP. 22 Laws of Kenya.** AND **IN THE MATTER OF PARCEL OF LAND NO. NORTH GEM/MALANGA/1205** AND **IN THE MATTER OF ORDER 37 RULE 7(1) OF THE CIVIL PROCEDURE RULES** **BETWEEN** **GRACE AWINO OTIN.............................................APPLICANT/PLAINTIFF** **= VERSUS =** **TERESIA SANDE OTIENO................................ RESPONDENT/DEFENDANT** **JUDGMENT** 1 By originating summons dated 25th April,2025 the plaintiff/applicant seeks a determination of the following questions; - 1. Whether GRACE AWINO OTIN the Applicant/Plaintiff herein is entitled to all that parcel of land described as Parcel No. NORTH GEM/MALANGA/1205 measuring 0.47 Ha registered in the name of the Respondent by reason of being the adverse possession thereof for a period exceeding 12 years. 2. Whether the Respondent's/Defendant's interest in Land Parcel No. NORTH GEM/MALANGA/1205 has been extinguished subject to the interest of GRACE AWINO OTIN. 3. Whether the Respondent is holding the title to Land Parcel No. NORTH GEM/MALANGA in Constructive Trust in favour of the Applicant. 4. Have the Applicant/Plaintiff be in actual, factual, active possession and in physical occupation of the said parcel to-date? 5. Has the said occupation and possession been peaceful, uninterrupted and has the same been known to or by the Respondent/Defendant? 6. What is the cumulative and or total period of such occupation to date? 7. Was the entry or ingress into the said parcel of land without the permission, let and or at the instance of the Respondent/Defendant and or the previous registered owners? 8. Has the Applicant/Plaintiff fulfilled all and singular the requirements for a declaration for the extinction of the registered proprietor's interest in the said parcel and the registration of the same in favour of the Applicant/Plaintiff by virtue of the doctrine of adverse possession? 9. Whether a declaration should be made that the ownership and proprietary rights and interests of the registered owner, be and is hereby extinguished. 10. Whether a declaration should be made that the parcel of land NO. NORTH GEM/MALANGA/1205 be registered in the name of the Applicant/Plaintiff, GRACE AWINO OTIN. 11. Whether the Deputy Registrar should effect the change of ownership and proprietorship, and execute transfer documents on behalf of the Respondent/Defendant. 2 The Plaintiff seeks the following reliefs from the court; - 1. The Applicant/Plaintiff has met all and singular the requirements for the declaration of extinction of the registered proprietor's rights and/or interests in the said parcel of land and for a further declaration that the said interests be registered in the name of GRACE AWINO OTIN or in her favour. 2. The names of the TERESIA SANDE OTIENO be deleted from the register and in its place, the name of GRACE AWINO OTIN be inserted as the owner and proprietor of all that parcel of land known as NORTH GEM/MALANGA/1205. 3. The District Land Registrar should be ordered to alter the register to reflect GRACE AWINO OTIN as the registered owner and proprietor of the said parcel of land forthwith. 4. The Deputy Registry of the Court to execute all the relevant transfer documents of title to Land Parcel No. NORTH GEM/MALANGA/1205 in favour of the Applicant/Plaintiff. 5. The Respondent/Defendant should bear the costs of this suit. 3 The defendant TERESIA SANDE OTIENO opposed the suit vide a replying affidavit sworn on 1/07/2025. **HEARING AND EVIDENCE OF THE PARTIES** 4 During pre-trial directions that Originating Summons was converted into a plaint and the reply thereto ad the defence. The matter was heard viva voce on 17/11/2025. **PLAINTIFFS CASE AND EVIDENCE** 5 PW1 was GRACE AWINO OTIN the plaintiff. She adopted the supporting affidavit dated 25th April, 2026 as her evidence in Chief. According to the witness statement she desired to purchase land to build a homestead around Malanga Village. Her brother-in-law - SIMON ODERA OGADA, (deceased) assisted her to identify Land Parcel No. NORTH GEM/MALANGA/1205. 6 That PW1 negotiated the purchase price first with the defendant who later authorized her mother Rosibila Achola Otieno to undertake final negotiations since PW1 was away and which yielded a purchase price of Kshs.80,000/=. The deal was sealed on 13th July 2005, a sale agreement drawn and a deposit of Kshs.10,000/= received and acknowledged by Rosibila Achola Otieno by appending her thumb print on an acknowledgement note. The balance of Kshs. 70,000/= was to be paid by instalments. That the defendant had informed PW1 her mother needed the money for her immediate personal use. That the transaction was witnessed by Simon Odera Ogada, (now deceased), Mary Achieng Odera and Eric Onyango Odera. 7 PW1 detailed the instalments totaling Kshs 70,000 made between August 2005 and September 2007 being full payment of the balance and therefore the full purchase price. PW1 then asked the Defendant to avail herself and to sign the transfer of title but the defendant declined citing stating the land had been sold at an under value and that she had not received part of the sale proceeds from her mother, hence demanded to be paid a further amount of Kshs. 100,000/= towards the purchase price. 8 That PW1 obliged and which she paid by several instalments which she detailed between February 2008 and September 2009. Kshs. 20,000/- to the defendant’s mother and the defendant directly and on the defendants’ instructions Kshs. 70,000 through the defendant’s son Bank Account CHARLES O. NAMAKE at COOPERATIVE BANK ACCOUNT NO. 01116182205700, making the purchase Kshs.180,000/=. 9 According to PW1 she took possession of the suit property immediately upon the commencement of the sale in the year 2005 by cultivating food crops, planted eucalyptus (blue gum), built a semi-permanent and permanent structure in 2008 and 2010 respectively including fencing the suit property and which has since been her home. 10 Thereafter and to date the Defendant has not completed the process of transfer of the suit property to PW1 despite the witness efforts to have her do the same. According to PW1 since the Defendant declined to obtain the requisite consent to transfer land to her upon the conclusion of the sale and since the statutory period to obtain such consent from the District Land Control Board lapsed in the month of December 2009, and since she has been living on the suit land ever since without the consent of the Defendant, she has now acquired title to the suit property by way of adverse possession, i.e., a period in excess of 15 years from 2010. 11 PW1 evidence is that the Defendant has been holding the title to the suit land for her in trust for the period aforesaid, during which period she has now become the owner of the suit land by way of adverse possession. Her possession of the suit land has been peaceful, continuous, active and hostile to the interest of the Defendant, and openly adverse to the interest of the Defendant. 12 Cross examined by Mr Omore the advocate on record in the matter for the Defendant PW1 testified that she bought the suit property from the defendant’s mother though she did a search before she bought the land which search showed the suit property was in the name of the defendant. She told the court she does not have any document to show that the defendant had authorized the mother to sell the land. Though she confirmed the defendants mother executed all the agreements she conceded the agreements dated 22/9/2005 to 29/12/2005, 28/4/2006 to 4/06/2006, 20/11/2006 8/7/2007, 12/2/2008 bore no signature of the defendants’ mother. That in respect of the few signed like the one dated 11/11/2008 bore no vendors ID Number. She reiterated that Kshs 70,000/- was given to the defendant’s son in Nairobi. 13 PW1 clarified in reexamination that based on the agreement dated 11/11/2008 the defendant received from her Kshs.20,000, that the bank pain slips totaled Kshs.70,000/- paid to defendants’ son whom she met together with the defendant who was leaving for Germany when they gave her the account and PW1 paid. That while in Germany she knew PW1 was buying the land. 14 The Plaintiff also called Mary **Jael Achieng Odera** who testified on her behalf as PW2. The witness adopted her witness statement dated as her evidence in chief. It was her evidence therein that she 81 years old a resident of Sirunga village where the plaintiff who is her last-born sister also lives. 15 The witness detailed how she came to know of the availability of the suit property for sale in 2005 through her cousin JAEL OJIWA OPONDO (now deceased) and who was aware of the plaintiffs need for land. The cousin informed her the same belonged to one ROSEBELLA ACHOLA OTIENO whom they. They called her and on 13th July 2005 she came to PW2 home when she clarified the parcel belonged to her daughter TERESI, SANDE OTIENO who was based in Germany. That she had her authority to sell it on her behalf so that the proceeds could be used to purchase alternative land for the daughter. They negotiated the sale in the presence of the plaintiff and husband SIMON ODERA OGADA (deceased), PW2 and ERIC ONYANGO ODERA PW2 son where the purchase price was settled at Kshs. 80,000/= and a deposit of Kshs. 10,000/= was paid. That on inquiry she informed them it was in the custody of the daughter in Germany but who always came back home in June every year. 16 PW2 further stated that upon payment of the full purchase price they paid an extra Kshs.10,000 after Rosebelas son OUMA LANA OTIENO informed them they needed more money to carter for deposit for purchase of the alternative land they had identified for Teresia. The same was paid in the presence of PW2 and her husband, OUMA LANA OTIENO, the plaintiff and her husband. 17 Further in November 2008, TERESIA came to their home in the company of ROSEBELLA her mother, CAROLINE OTIENO her sister, and another lady, Teresia told them she never received the purchase money from her mother and demanded the entire amount of Kshs.90,000/=. Teresia was then paid Kshs. 20,000 on 11/11/2008. The witness reiterated the instructions for how the balance was to paid at Cooperative Bank and was paid as already detailed by PW1. 18 According to PW2 the Plaintiff took active possession of the parcel of land immediately after the agreement was made in 2005 by cultivating, constructing a semi-permanent house in 2008 and started living in it, where Teresa was hosted on 11/11/2008 above. In the year 2010, the plaintiff built a permanent house where she lives to date and has done so openly, peacefully and continuously. Teresia has not transferred the parcel of land to her for 20 years. 19 On being cross examined PW2 told the court the plaintiff did a search before the land was bought and which showed the defendant as proprietor. The defendant gave her consent to the sale verbally. PW2 stated she was present during the sale. That the Defendant was paid 90,000/- 1st payment was made to the defendant mother. On being referred to the agreement dated 31/4/2005 PW2 agreed the Defendant was not present. 20 PW3 was **Erick Onyango Odera** a resident of Siranga Vilage Maranga. The witness adopted his witness statement dated 14/10/2025 as his evidence in chief. It was his evidence therein that he recalled July 2005,when the plaintiff who is his relative and well known to him called on PW3’ father Simon Odera Ogada (now deceased) and mother (PW2) on 13th July 2005. The witness was present, Rosebella Achola informed them of her daughters (the defendant) desire to sell the suit property as she needed the money to buy another parcel of land away from the village, since that place is the home of her mother and she did not want to live among her maternal relatives. PW3 informed Rosebella of the plaintiffs need to purchase land. That it was immediately agreed that the parcel of land be sold to her. Rosabella informed them she had the express authority of her daughter Teresia to sell the land and they believed her as they were relatives and knew Teresia lives and works in Germany. The witness states he recorded receipt of the deposit of Kshs 10,000 paid to Rosebella. The rest of the evidence largely echoed the happenings thereafter as given by PW2. 21 The witness testified in cross examination that initially no search was done and everybody knew Rosebella was the owner of the suit property. He knew about the defendant on 11/11/2008 when she came to their home with her mother , sister Caroline Otieno and a lady friend when she wanted either refund of Kshs 90,000/- or its equivalent saying she never received a single sent from the 1st instalment. 22 With the above the plaintiffs case was marked as closed. **DEFENDANTS CASE AND EVIDENCE** 23 The Defendant Teresa Sande Otieno testified (virtually) as DW1 and adopted her affidavit sworn on 1/07/2025 as her evidence in chief. 24 It was her evidence therein that she is the registered proprietor of the suit property NORTH GEM/MALANGA/1205. She denied ever entering into any agreement or understanding verbal or written with the Plaintiff regarding the sale, lease, or transfer of the suit property. No sale agreement exists, and none has ever been executed between the Plaintiff and her. The claim is unfounded and unsupported by any credible evidence. That she never received any money from the Plaintiff or anyone else in respect of the suit property. According to her the Plaintiff is unlawfully occupying her land. 25 DW1 maintained that she never gave the Plaintiff any permission, express or implied, to enter or occupy the land. That the Plaintiff has concocted the allegations in an attempt to lay an unlawful claim over the suit property. That she has never demanded, received, or solicited any money from the Plaintiff or her agents in respect of the suit property. 26 DW1 states she lawfully acquired the suit property through purchase around 1993 from RICHARD ONYANGO JABER, and has used it solely for personal and domestic purposes and had never intended to sell or dispose of the same. That she has been outside the country for a long time, but in the month of February, 2025, she returned home to bury her son when she discovered the plaintiff had forcefully and unlawfully occupied a portion of her land without her knowledge, consent, or permission. She then approached the Plaintiff and demanded that she vacate the land who has refused. However, she has refused and continues to occupy the property in complete disregard of her rights as the registered owner. 27 That the actions of the Plaintiff amount to trespass, and her continued occupation of my land is unlawful and without any legal basis whatsoever. She has made several efforts, both formal and informal, to resolve the matter amicably, but the plaintiff has remained adamant, aggressive, and dismissive of the plaintiffs ownership rights. 28 She added in her oral testimony that she had told the mother to plough the land until the time she would be ready to build a home for her children. She liked the location. It is her sister who discovered the issue of the parcel after she had sent her. 29 On being cross examined DW1 confirmed to this court her mother’s name is Rosebella Achola Otieno and that Charles Otieno Nemake is her son. That it is her sister Celine Anyango who told her the situation on the land . She denied the contents of the document dated 11/11/2008(page 18) including its maker. She indicated she was not familiar with the name Samuel Odera Ogada but confirmed that the plaintiff was in occupation of the land. **SUBMISSIONS** 30 Parties agreed to file and exchange their final written submissions which they complied. **PLAINTIFFS SUBMISSIONS** 31 The Plaintiffs submissions are dated 10.2.2026 and identified the following issues for determination by the court. 1. Whether the Plaintiff has demonstrated actual continuous and exclusive possession of the suit property for the statutory period of twelve (12) years or more. 2. Whether the possession is without the consent of the Defendant, and has been hostile to the interest of the Defendant. 3. Whether the possession has been open, notorious. 4. Whether the Plaintiff has acquired title to Land Parcel No.NORTH GEM/MALANGA/1205 by way of adverse possession. 5. Who pays the cost of the suit. 32 It is submitted that the plaintiff took possession of the suit property since 2005 when she started cultivating it, built a semi-permanent structure in 2008 and thereafter a permanent house and has lived therein since the year 2008 a period of Seventeen (17) years which disposed the defendant of the property. Reliance is placed on the Court of Appeal decision in **Wambuga V.Nguna (1983) KLR 173**. 33 It is submitted that the confirmed during the hearing that she had never taken possession of the suit property. Relying on the decision of Supreme Court of Kenya in ***Mtana Lewa V. Kahindi Ngala Mwagandi {2015} Eklr*** where the court described adverse possession as arising, when a person takes possession of land and asserts rights over it, with the actual owner failing to act against such person to reassert ownership within the prescribed period. 34 It was urged that the possession was non-permissive, open, continuous and sufficiently public to give notice to the actual owner. There was intention of the dispossessor to appropriate and use the land as her own to the, exclusion of all others irrespective of any semblance of shadow of actual title right. The court was referred to the Court of Appeal decisions *in* ***Kweya v/s Omutut (1990) KLR*** and the case of ***Ruth Wangari Kanyagia v/s Josphine Muthoni Kinyanjui (2017) eKLR*.** 35 The plaintiff contended that the use of the property was prominent enough for the Defendant to be aware of the claim if she exercised reasonable diligence. That the defendant in this case admitted that she was aware of the Plaintiff's possession of the suit property, save that she claimed that the Plaintiff's possession was illegal because she had not consented to such possession by the Plaintiff. **THE DEFENDANTS SUBMISSIONS** 36 The defendant identified the following issues for determination;- 1. Whether there existed a valid and enforceable land sale agreement between the Respondent and the Applicant. 2. Whether any third party had authority to sell or transact over the suit property on behalf of the Respondent. 3. Whether the Applicant acquired any legal or equitable interest in the suit property. 4. Whether the Applicant is entitled to the reliefs sought. 37 On the 1st issue was submitted that None of the sale agreements were signed by the Respondent, they did not identify the subject land parcel with certainty and the essential ingredients of a valid contract as required under Section 3(3) of the Law of Contract Act were wholly absent. That a contract cannot bind a person who neither signed it nor authorized. The alleged agreements are termed to be null and void ab initio. Reliance is placed on the case of ***Nelson Kivuvani v Yuda Komora & Another [1991] eKLR*** where it was held that an agreement that does not comply with Section 3(3) of the Law of Contract Act is unenforceable. 38 The authority of the registered owner to sell or power of, agency agreement, or written consent was produced in evidence . Counsel referred the court to the maxim (nemo dat quod non habet). That no person can transfer a better title than they possess. Reliance is placed on the case of ***Wreck Motors Enterprises v The Commissioner of Lands & Others [1997] eKLR,*** where the court reaffirmed that title can only pass from a person legally entitled to transfer it. 39 It is submitted a valid a claim contract for and ownership of land cannot stand in the absence of proof consideration. That the plaintiff failed to produce any proof of payment to the Respondent; Any acknowledgment, receipt, or bank record, Any credible evidence linking the Respondent to the alleged transactions. 40 In relation to the plaintiffs plea of long occupation and adverse possession referring to the elements of adverse namely Continuous exclusive peaceful for 12 years adverse to the title of the registered owner as propounded in ***Kasuve v Mwaani Investments Ltd & 4 Others [2004] eKLR.*** it is submitted the same were not met. 41 That even assuming the sale agreement were found to be valid the entry would be considered permissive and not adverse. 42 Counsel contents that Section 24 and 25 of the Land Registration Act, 2012, registration confers absolute ownership together with all rights and privileges appurtenant thereto. The Respondent's title has not been challenged on grounds of fraud, illegality, or misrepresentation attributable to her, as required under Section 26 of the Act. The plaintiff has failed to meet the legal threshold to defeat a registered title. 43 The court is invited to dismiss the suit. **ANALYSIS AND DETERMINATION** 44 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 and authorities filed herein by the Learned Advocates for the parties. 45 It is my view that this suit will be best determined by answering the following questions 1. Whether or not the plaintiff’s entry and presence on the suit land was with the knowledge but without the permission and consent of the defendants as the registered owners. 2. Whether or not the plaintiff has had open, actual, exclusive, peaceful, continuous and uninterrupted possession (nec clam, nec vi, nec precario) of the suit property for a period of over 12 years. 3. Whether or not the defendants title has become extinguished by operation of law. 4. Who bears the costs of the suit. 46 The doctrine of adverse possession in Kenya is founded under the Limitation of Actions Act CAP 22 Laws of Kenya (herein the Act) 47 The doctrine is anchored on Sections 7, 13, 17 and 38 of the Act which 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.”*** 48 Section 7 therefore places a bar on actions to recover land after 12 years from the date on which the right accrued. 49 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 land* 2. *Where a right of action to recover land has accrued and thereafter, before the right is barred, the land cease to be in adverse possession, the right of action is no longer taken to have accrued and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.* 3. *For the purpose of this section, receipt of rent under a lease by a person wrongfully claiming in accordance with section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.* 50 The procedure for seeking relief on a claim based on adverse is provided for in Section 38 of the Act and Order 37 of the Civil Procedure Rules, 2010 51 Section 38 of the Act allows a claimant to apply to the Court and 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.”*** 52 In the case of ***Mtana Lewa –vs- Kahindi Ngala Mwagandi [2015] e KLR*** 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 averse to the title owner.”*** 53 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. 54 It is trite law that he who alleges must prove. This is set out under Section 107(1)(2) of the Evidence Act, which provides as follows: (1) **Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **Whether or not the plaintiff’s entry and presence on the suit land was with the knowledge but without the permission and consent of the defendants as the registered owners.** 55 Firstly it is a requirement that the land the subject of adverse possession must be registered in the name of a third party other than the claimant. PW1 adduced into evidence Copy of Certified Green Card for parcel No. NORTH GEM/MALANGA/1205 measuring 0.47 Ha showing that on 29/10/1993 the parcel was registered in the name of Tersia Sande Otieno the defendant herein. A title deed was issued on the same date. There is no contestation about this. It is not in dispute that the parcel is so registered DW1 also produced a copy of Green Card evidencing she is the registered proprietor. ***Whether or not the plaintiff’s entry and presence on the suit land was with the knowledge but without the permission and consent of the defendants as the registered owners*.** 56 The plaintiff evidence is that she took possession of the suit property after it was sold to her by the defendant’s mother with permission of the daughter the defendant herein who was away in Germany and the proceeds of the sale were to be used to purchase alternative land for the daughter. 57 DW1 has denied that she ever authorized her mother to sell the suit property neither did she enter into any sale agreement with the plaintiff to dispose of the suit property as stated above. It is her case that she never received any money from the proceeds of the alleged sale. 58 I must observe that counsel for the plaintiff appears to have abandoned the position that the root of the plaintiff’s entry into the suit property is founded on the above alleged purchase. 59 However based on the law and authorities cited the entry into the suit property must be without authority of the registered owner of the parcel. The Defendants evidence that she did not authorize the sale of the suit property in fact supports the position of adverse entry which was without her permission into her property by the plaintiff. 60 A submission has been made on behalf of the defendant that there was no valid sale agreement or contract for the sale of land between the plaintiff and the Defendant. However, from the pleadings and the evidence it is clear the plaintiff’s case is on adverse possession of the suit property following failure of the transfer into her name. 61 I think the validity of the sale agreement is a non issue for purposes of a claim for adverse possession. I say so because the only outcome allowed in a claim for adverse possession is the loss of land through such possession. It does not matter if there was an earlier transaction. In this regard I’m persuaded by the determination in the case of ***Onzere Vs Nanyama (Environment and Land Appeal 15 OF 2022) (2024) KEELC 1392 (KLR).*** 62 It has also been urged by counsel for the defendant that even assuming there was a valid sale agreement the same would make the plaintiffs entry into the suit property as permissive. The position as to a right of a buyer in adverse possession was clarified in the case of ***Peter Mbiri Michuki vs Samuel Mugo Michuki (2014) eKLR,***where 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*. 63 As to whether the Defendant was aware of the plaintiff’s entry into the land and occupation, DW1 told this court that she was not aware of the issue of plaintiff’s occupation because she has always been away in Germany and rarely travelled home. That she only came to know of the same in February, 2025 when she came home to bury her son. I did not believe the witness testimony in this regard. DW1 conceded that Rosebella Achola Otieno was her mother and Charles Otieno Nemake her son. All the Plaintiffs witnesses placed these two at the center of the arrangements that caused the plaintiffs adverse entry into the suit property. The defendant did not produce any evidence such as her passport entry that she has never been home except the time she came to inter her son. The defendant never called her mother as a witness to support her case and the court was never informed of her whereabouts. 64 Based on the foregoing therefore it is the finding of this court that the plaintiff’s entry was without permission of the Defendant but with her knowledge. 65 PW1 testified that she took possession of the suit property in the year 2005, started cultivating thereon, built a semipermanent house, planted blue gum trees, built a permanent house in 2008 and has lived therein to date. She produced a bundle of photographs to prove this occupation. Indeed, my review of the same depicted houses erected in the suit property, Farming (Bananas) and the trees. The evidence was further corroborated by PW2 and PW3. I had no reason to disbelief the evidence of PW2 an elderly woman of 82 years and who had very good memory of the events regarding the dispute. DW1 conceded in cross examination that the plaintiff is indeed in occupation of the suit property. 66 The above also speaks to the open occupation of the plaintiff on the suit property, the same was not in secret. The above also speaks to the peaceful occupation since the DW1 own evidence is that it is only when she came home to bury her son in the year 2025 did, she start engaging the plaintiff to get her out of the land. However, I had no evidence of the actual action DW1 took to physically remove the plaintiff from the suit property at any other time. 67 But for how long had the plaintiff been in occupation of the suit property by the time DW1 allegedly sought to assert her rights over the property? I have already highlighted PW1 case that she took possession of the land in the year 2005. This evidence was corroborated by PW2 and PW3. It was not controverted by the Defendant. The occupation spans a period of over 15 years. The present suit was filed in the year 2025 by which time the limitation period had kicked in essentially barring the registered proprietor from recovering the suit property. 68 It is therefore the finding of this court that the plaintiff has proved on a balance of probabilities she has been in open, actual, exclusive, peaceful, continuous and uninterrupted possession (nec clam, nec vi, nec precario) of the suit land for a period of over 12 years. **Whether or not the defendants title has become extinguished by operation of law.** 69 The court has already outlined the legal provisions upon which the doctrine of adverse possession is underpinned. Having reviewed the plaintiffs claim, the evidence led before court vis a vis the said legal provisions and having arrived at the foregoing conclusions then I must make a finding that the Defendants title has become extinguished by operation of the law. 70 Is the Plaintiff entitled to the orders sought in this suit. For the foregoing reasons I see no reason to deny the Plaintiff the reliefs sought. **Who bears the costs of these proceedings?** 71 The plaintiff has sought for the costs of the suit. In the case of ***Republic v. Rosemary Wairimu Munene (Ex parte Applicant) v. Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2004*** Mativo J. held that the issue of costs is the discretion of the Court and is used to compensate the successful party for the trouble taken in prosecuting or defending the case and not to penalize the losing party. 72 The Supreme Court of Kenya in ***Jasbir* *Singh Rai & 3 others v. Tarlochan Singh Rai Estate of & 4 others; SC Petition 4 of 2012; [2013] eKLR*** held that costs normally follow the event. 73 The Plaintiff being the successful party in this suit and while applying the above principle I find that the Plaintiff is entitled to costs of this suit. 74 The upshot of the foregoing is that the plaintiff has proved her claim of adverse possession against the defendant on a balance of probabilities. 75 The court therefore enters judgement for the plaintiff against the Defendant in the following terms; - 1. The Plaintiff has met all and singular the requirements for the declaration of extinction of the registered proprietor's rights and/or interests in parcel of land known as NORTH GEM/MALANGA/1205 by dint of adverse possession and a further declaration that the said interests be registered in the name of GRACE AWINO OTIN. 2. The names of the TERESIA SANDE OTIENO be deleted from the register and in its place, the name of GRACE AWINO OTIN be inserted as the owner and proprietor of all that parcel of land known as NORTH GEM/MALANGA/1205. 3. The District Land Registrar is hereby ordered to alter the register to reflect GRACE AWINO OTIN as the registered owner and proprietor of the parcel of land known as NORTH GEM/MALANGA/1205. 4. The Deputy Registrar of the Court to execute all the relevant transfer documents of title to Land Parcel No. NORTH GEM/MALANGA/1205 in favour of GRACE AWINO OTIN. 5. The Respondent/Defendant shall bear the costs of this suit. Dated at Siaya this 19th Day of May 2026 **HON. JUSTICE A. E. DENA** **JUDGE** **19/5/2026** **Judgement delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** Mr. Ariho Holding Brief for Mr. Ogonda the Plaintiff Mr. Omore for the Defendant Court assistant: Abiud Wekesa