Josiah & another v Wathumi

6. That costs of this suit be borne by the respondent. 2. The originating summons was premised on the sixteen (16) grounds itemized in the summons. It was anchored on Sections 17 and 38 of the Limitation of Actions Act; Section 7(d) of the Land Act; and Order 37 rule 7 of the Civil Procedure Rules. It was supported by their respective adavits sworn on 29/8/2002. 3. On 7/11/2022, this court granted the plaintis leave to eect service of summons through a prominent notice in either the Daily Nation Newspaper or the Standard Newspaper. An adavit of service sworn on 20/12/2022 by Timothy K. Simiyu was subsequently led, indicating that the defendant had been served through a notice published in the Standard Newspaper on 10/12/2022. The defendant neither entered appearance nor led a response to the originating summons. Consequently, the originating summons was heard as an undefended cause on 26/7/2023. It was canvassed through brief written submissions dated 8/8/2023. It now falls for Judgment. 4. The two plaintis are mother and son. The 1st plainti contends that she has lived on the suit land since 1964. She has raised all her seven children on the land. The 2nd plainti is one out of the seven children of the 1st plainti who call the suit land their home. The 1st plainti contends that she has been in open and uninterrupted adverse possession of the suit land for a period of approximately 59 years, commencing from 1964. It is her case that the defendant has been aware of her adverse possession and has never objected to it. 5. I have considered the originating summons together with the evidence and submissions that were tendered. The defendant did not oppose the originating summons. The plainti exhibited an ocial search dated 22/8/2022, showing that the suit land was at the time of initiating this suit registered in the name of Kiburi Wathumi. The contention that the 1st plainti has been in open and uninterrupted adverse possession of the suit land since 1964 has not been controverted. Similarly, the contention that the plaintis have developed the suit land has not been controverted. 6. The plaintis took out the originating summons jointly. It, however, emerged during trial that the 2nd plainti entered and lived on the land by dint of him being one of the seven (7) children of the 1st plainti. In light of that, I do not think the 2nd plainti has an independent claim of title over the suit land under the doctrine of adverse possession. Were the court to grant the 2nd plainti independent orders of adverse possession in respect of the suit property, this will prejudice his six siblings who, like him, have lived on the suit property by dint of the fact that their parents were adverse possessors of the land. 7. Taking into account the foregoing, the court is satised that Bilha Watoro Josiah has proved, on the balance of probabilities, that she has acquired title to land parcel number Komothai/ Kibichoi/ T.138 under the doctrine of adverse possession. Consequently, adverse possession orders are hereby granted to her in terms of prayers 2, 3, 4 and 5 of the originated summons dated 29/8/2022. The 2nd plainti’s claim is rejected on the ground that he has lived on the said land by dint of being one of the seven children of the 1st plainti who acquired title to the suit land upon expiry of 12 years from the date of her entry onto the land. 8. Given that the originating summons was undefended, there will be no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 4TH DAY OF DECEMBER 2023 B M EBOSO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22081/eng@2023-12-04 2

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