Keah & 58 others v Abdinasir

II. Court directions before the hearing 3. On 19th July, 2021, after conrming that all parties had complied with Order 11 of the Civil Procedure Rules 2010, the Honourable Court set the hearing date on 27th October, 2021. The Plaintis/ Applicants called PW - 1, PW - 2 and PW - 3 on the same day and closed his case thereafter. The Defendant/Respondent called their witnesses DW - 1 on 6th November, 2024 after which he closed his case. III. The Plaintis/Applicants’ case 4. 5. The Plaintis/Applicants claimed entitlement of the suit property by virtue of Land adverse possession and therefore seek the following ORDERS:a. That the Respondent’s interest in Plot No 307 and 308/II/ MN measuring 1.488 and 1.659 Acres respectively has been extinguished. b. That the Applicants be registered as the proprietors of all those parcels of land Plot No 307 and 308/II/ MN measuring 1.488 and 1.659 Acres respectively which said pieces of land are comprised in a Certicate of Title registered in the Land Titles Registry at Mombasa in place of Jama Ismail Abdinasir reason of the fact that the Applicants have become entitled to the said land by adverse possession. c. That the orders referred to in Paragraphs 1 and 2 above be registered against the titles Plot No 307 and 308/II/MN measuring 1.488 and 1.659 Acres respectively which said pieces of land is comprised are a Certicate of Title registered in the Land Titles Registry at Mombasa in terms of Section 38 (2) of the Limitation of Actions Act, (CAP 22) Laws of Kenya. d. That the costs of this Originating Summons be provided for. The Original Summons was based on the following grounds on the face of it and those of the 9 paragraphed supporting adavit sworn by Jaqueline Nduku Keah, the 1st Plainti/Applicant sworn on the same day with the Originating summons where she averred: a. The Applicants had been in uninterrupted exclusive physical occupation of Plot No 307 and 308/II/MN measuring 1.488 and 1.659 Acres respectively for a continuous period of more than 12 years. b. The Respondent had shown no interest in this plot and neither had he for the said period, given any notice to vacate possession to the Applicants from the suit land. c. The Respondent’s rights and/or interest in all parcels of land known as Plot No 307and 308/ II/ MN measuring 1.488 and 1.659 Acres respectively vis-à-vis those of the Applicants have been extinguished. d. The Applicants had peacefully exercised proprietary rights over the suit property for over 12 years and now claim it by law to acquire a legal right over the suit property. e. It was fair and just that the Applicants be registered as the owners of land known as Plot No 307 and 308/II/ MN measuring 1.488 and 1.659 Acres respectively so that they can stop living in fear of losing the said land. f. The suit property was the only known home for the Applicants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 2

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6. g. They stood to suer irreparable loss, damage and rendered homeless if the Honourable Court grant them legal title to the suit property h. They had commenced out said action for adverse possession by way of an Originating Summons as mandated by law. The Plainti/Applicant called PW - 1 on 27th October, 2021 at 12.45 pm and he testied as follows:- A. Examination in chief of PW - 1 by Mr. Ngeno Birir Advocate:7. PW - 1 was sworn and testied in Swahili language. She identied herself as Jaqueline Nduku Keah, a Citizen of Kenya with all the particulars as contained in the national identity card shown to Court. She resided at Bombo near Utange within the County of Mombasa. She was aware why she was in court. She recorded a witness statement in form of a supporting adavit on 18th July, 2019. She was in court due to Plots No. 307 and 308/II. She had been cultivating on the land from year 2007 April and she was representing the others. PW - 1 told the court that they never got them dierently; it was a forest. Crops would be eaten by wildlife. There was nobody claiming the land. When they realized that the crops were being destroyed they decided to construct on the land. 8. PW - 1 stated that she had a permanent structure and she lived on the suit land. They conducted an ocial search and found the owner. Later they saw a lawyer and one Mr. James. Thereafter they saw from the notice in the newspaper of “Taifa Leo” demanding for the demolition of the structures on the land. They decided to le the suit. They conducted a search again and they found that the land was now registered to the name s of the Defendant. She told the court that she wanted to see papers indicating that the land belonged to Mr. Jama and for the Defendant to tell them how they acquired it. She adopted the statements produced. The list of documents was also produced and marked as Plainti Exhibit 1 to 16 (a) to (j). B. Cross examination of PW - 1 by M/s. Essajee Advocate. 9. According to the PW - 1 she was one of the people on the land. She is the one who signed the statements. She said that they were dead after they conducted the ocial search. The names had Swahili names. There were Swahili muddy huts. The houses had foundations. They had no evidence that the title deed was acquired fraudulently. A title deed was to be checked. 10. On the same day the Plaintis/Applicants called PW - 2 who testied as follows:- A. Examination in Chief of PW - 2 by Mr. Ngeno Birir Advocate. 11. PW - 2 was sworn and testied under oath and in Swahili language. He was called JAMA ISMAIL CHOME MUMBA a Citizen of Kenya with all the particulars as contained in the national identity card shown to Court. He lived at Bombo on Plot No. 307. There were two - Plots 307 and 308. Jaqueline lived on Plot 307. He came to the land from the year 2008. He came for farming activities. He found Jaqueline already settled on the land. The whole place was vacant. From there he started building on it. He had never seen anyone claiming ownership of the land until the year 2019 when he saw people come to the land and claim that they were land surveyors and wanted to know the boundaries of the land. By then, there were over 50 people on the land. The occupants protested and the surveyors went away. The Plaintis instituted the suit. From that time they had not seen anyone one the land. 12. PW - 2 told the court that before the year 2019, they had never received any communication from anyone claiming for ownership of the land. They had never seen anyone by the name of Jama. He had lived on the land from the year 2008 todate. He had two – semi permanent houses on the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 3

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PW - 2 asked the court to check out the matter so that he is permitted to stay permanently with documentation. He adopted his witness statement as his evidence in chief. B. Cross Examination of PW - 2 by M/s. Essajee Advocate. 13. PW - 2 conrmed that before year 2008, he was staying in Mombasa – Mtopanga area which was 3 kilometers from Bombo. He started cultivating the place. By the time they moved onto the land, there were only 10 people in occupation. But later on, there were over 85 people who came in within one year i.e. 2009. When the surveyors came they were accompanied by the Chief. His houses were temporary houses. 14. The Plaintis called PW - 3 on the same day who testied that:- A. Examination in chief of PW - 3 by Mr. Birir Advocate. 15. PW - 3 was sworn and testied in Swahili language. He identied himself as BAKARI OMARI KONDE a Citizen of Kenya with all the particulars as contained in the national identity card shown to Court. He was amongst the Plaintis in the suit. He adopted his recorded statement as his evidence in chief. He got into the land in the year 2008. By then the land was a forest. The forest was cleared and was able to accommodate squatters. He used to live at Bamburi, Kisauni. The rent went up so he went and got a place at the forest and made it his own. He never saw anyone but in year 2019 one person came and wanted to be shown the boundaries of the two plots. 16. PW - 3 told the court that the persons were not able to conduct any survey exercise as they had intended to do. Instead, they left and decided to engage an advocate and led the case. He had become suspicious that these people wanted to evict them from the plots. PW - 3 stated that he did not know Mr. Jama Ismail Abdinasir. From the time he got there he had never seen anyone who attempted to evict them. 17. PW 3 asked the court to protect him from being evicted. He had nowhere to go and he needed ownership and documents – title. They were now over 80 to 100 families. They were poor people. He adopted his witness statement as his evidence in chief. B. Cross examination of PW - 3 by M/s. Essajee Advocate. 18. PW - 3 conrmed that he found the 1st and 2nd Plaintis on the suit land. He was the 2nd or 3rd generation to settle there. He feared that there were people who wanted to evict him. The search did not show the names of Jama. It was later on that Jama’s name appeared. He would have wanted to know. 19. On 27th October, 2021 the Plaintis through their legal counsel Mr. Birir marked the close of their case. IV. The Defendant/ Respondent’s case 20. The Defendant/ Respondent responded through a 12 Paragraphed replying adavit oF Ismahan Hassan Nunu, authorized by the Respondent to represent him in this matter herein, sworn on 22nd September, 2020 with eight (8) annextures averred that:a. The Respondent was the legal and absolute owner of the suit properties known as Plot Number 307/II/MN and 308/II/MN registered as title number CR 1175 and CR 1176 respectively. Annexed in the adavit and marked as “IHN – 2” and “IHN – 3” were copies of the Certicate of Titles. b. The Transfers to the Respondent were made on the 15th January 2008. (see entries in annexture as “IHN – 2” and “IHN – 3” above). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 4

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21. c. The Respondent purchased the said properties for value and was entitled to enjoy uninterrupted use of the same pursuant to the provision of Article 40 of the Constitution of Kenya 2010. d. The Applicants had interfered, violated and contravened with the Respondent’s Constitutional right to property illegally. e. The claim for adverse possession was pre-maturely and improperly before this Honourable Court for the following reasons:i. That on the 4th July 2019 the Respondent through their Advocates on record caused to be published in the daily newspapers notice of evictions as per the guidelines of Section 152E of the Land Act, No. 6 of 2012. Annexed in the adavit and marked as “IHN – 4” and “IHN – 5”. ii. That the said notices were served in person upon the squatters. iii. That further, the Respondent’s advocates on record caused to be served upon the Deputy County Commissioner and Ocer Commanding PoliceDivision Bamburi/ Utange Area respectively. Annexed in the adavit a copy of the received copy of the letter marked as “IHN – 6 to IHN – 7”. iv. That the notice of eviction had since lapsed and the Applicants were now trespassers in the Respondent's properties. v. That the Respondent’s prima facie investigation arrived at the conclusion that the Applicants had merely erected temporary structures in the area and have not had uninterrupted use of the land( annexed in the adavit a copy of the surveyor’s report IHN-8) f. The Court should neither entertain nor endorse the Applicants' attempt to sanitize its lthy hands contrary to the principles of equity and justice. g. The Applicants were neither the legal nor the benecial owners of the properties therefore they do not have a claim to the same at law or equity. h. The Applicants had only led this application after being properly and duly served with a notice of eviction from the said properties. i. The Applicants’ application was devoured of merit, was bad in law and a blatant abuse of the court process and should therefore be dismissed with costs to the Respondent. The Defendant/Respondent called DW - 1 on 6th November, 2024 who testied, through a Somali Interpreter that:- A. Examination in Chief of DW - 1 by M/s. Abdalla Advocate. 22. DW - 1 was sworn and he testied in Somali language. He identied as ISMAIL ABDINASIR JAMA a Citizen of Australia with all the particulars as contained in the Passport for Australia. He was born in year 1961. He recorded a witness statement dated 27th July, 2021 which he adopted as his evidence in chief. He recalled the Replying Adavit of Ismahan Hassan Nunu dated 22nd September, 2020. She was his appointed attorney based on the power of attorney and was aware of the documents attached. He bought the suit property on 5th January, 2008. Before of which he instructed his advocate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 5

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to conduct due diligence. There were no issues that emerged from the due diligence. He inspected the suit property and at the time of the inspection there were no structures. 23. DW - 1 told the court that the situation had changed as there were people on the suit land. This was after about 3 years. He did not remember the exact year. After he discovered that there were people on his property. It took him time to come to Kenya then he went to his lawyer for them to institute a civil suit. Before the lawyers led the case they published a notice in the Daily Nation to have the person vacate the property. But after the notices, nothing changed. The notices were there for a period which his advocate can tell, he did not know it himself. At the time of his statement it had been one year since he was at the suit property. 24. According to the Witness, when he visited the land he saw there were people settled there and several temporary houses there. From his knowledge the Plaintis; had occupied the land for close to 5 to 7 years at the time of his testimony. Since he bought the property; they tried to do some sub – division but was never completed. He got engaged elsewhere and in the course of time he travelled back to Australia. He could not remember the exact time he undertook the surveying or sub – division; it was before the invasion by the squatters. 25. DW - 1 told the court that rather than placing of the notice by the advocates to remove the squatters; there was nothing else that they did. they never engaged the provincial administrator to eect the eviction notice. B. Cross examination of DW - 1 by Mr. Birir Advocate. 26. DW - 1 conrmed that he had been in Australia for 25 years and was an Australian citizen and was not a citizen of Kenya. The property measured i.e. L.R. No. 307 – 1.5 acres and L.R. No. 308 measures 1.7 acres. The land was a freehold land and was not aware that as a foreigner he was not allowed to own freehold land in Kenya. He had a Sale Agreement for the two parcels of land which were with his advocates. He was aware that the seller and the purchaser were to enter into a sale agreement. He did not visit the suit land as he feared the people who settled there as they had occupied his land forcefully and illegally. 27. DW - 1 further told the court that he was not planning to sell the land. He did not know how much it was fetch but he was thinking a total sum of Kenya Shillings Twenty Million (Kshs. 20,000,000/-) or thereabout. He never did the survey exercise and there was nothing on it in year 2008. He had not brought the land survey report to court. In the year 2008 there was nobody on the land but he did a survey which was not in Court. With reference to title no. 307, the witness told the court that the last entry No. 7 was issued; entry no. 6 was for Aya Binti Salim Barika Binti Salim was on 26th October, 1957. It was not true that the title was fake and fraudulent whereby he got a Land Registrar to ax his name in the title. He was the registered owner of the suit property in accordance with the Entry Number 7 of the title. 28. DW - 1 conrmed that he bought the land for a sum of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000/-) on 15th January, 2008. When his advocates published the notices he was not in Kenya. When he bought the land and fenced it but people would remove/ demolish the fence. B. Re - examination of DW - 1 by M/s. Abdalla Advocate. 29. DW - 1 reiterated that he was an Australian. He bought the land in the year 2008. It was before the law charged in year 2010 which barred foreigners from owning land in Kenya through the Constitution of Kenya 2010. With reference to the transfer document, the witness told the court that he bought it from (reads the name of the transfer forms). He told the court that he was present when the transferors https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 6

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signed the document and there was an advocate. Plot No. 308 was sold to him by Barika Binti Salim. He was present when they signed the transfer and there was an advocate present as well. 30. DW - 1 refuted that he bought these two properties over the table but he saw them before purchasing them and there was no one on the said property on the value of the property as he was not a licenced valuer and neither was he planning to sell the property for him to know the value. 31. On 6th November, 2024 the Defendant closed his case through his Learned Counsel M/s Abdalla Advocate. V. Submissions 32. On 6th November, 2024, immediately after the closure of the Plaintis/Applicants’ and the Defendant/ Respondent, the Honorable Court directed the parties to canvass the originating summons dated 18th July, 2019 through written submissions. Unfortunately, by the time of penning down this Judgement, the Honourable Court had not been in a position to access any of the written Submissions from neither the le nor the Judiciary CTS. 33. Thereafter, the Honorable Court reserved a date for delivery of Judgement on 9th February, 2025 but due to unavoidable circumstance it was eventually delivered on 28th March, 2025 accordingly. VI. Analysis and Determination 34. I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court, the relevant provisions of the Constitution of Kenya, 2010 and the law. 35. In this regard, in order to arrive at an informed, reasonable and fair decision, the Honourable Court has framed three (3) key issues for its determination: a. Whether the Plaintis have made out their claim of land through Adverse possession? b. Whether the Plaintis are entitled to the prayers sought? c. Who meets costs of the suit Issue No. a). Whether the Plainti has made out his claim of land through Adverse possession 36. Under this sub – heading, the Honourable Court has deciphered that the main issue is whether the Plaintis/Applicants is entitled to ownership of all that parcel of land known as plot No. Plot No 307 and 308/II/ MN measuring 1.488 and 1.659 Acres by virtue of adverse possession. It is trite law that in any suit of this nature, the party who seeks to rely on the existence of a fact or a set of facts must provide evidence that those facts exist. This is what in law is termed as “the Burden of Proof” and is encapsulated for by Section 107 of the Evidence Act Cap 80 laws of Kenya which provides as follows:“ 107. 37. Burden of Proof (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.” The provision of Order 37 Rule 4 of the Civil Procedure Rules, 2010 pursuant to which the application was brought provides that:“ Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 7

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redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specied, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgage.” 38. Adverse possession is a doctrine of law vide which a person obtains legal title to land by reason of actual, open and continuous occupation of it to the exclusion of the registered owner for a prescribed period. In Kenya, the prescribed period is 12 years. The doctrine is anchored on Section 7, 13 and 38 of the Limitation of Actions Act. Section 7 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 rst accrued to some person through whom he claims, to that person.” 39. 40. 41. The provision of Section 13 of the Limitation of Actions Act, Cap. 22 provides: (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. The procedure for seeking relief on a claim based on adverse is provided for in Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, 2010. Section 38 (1) provides; (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land (2) An order made under sub-section (1) of this section shall on registration take eect subject to any entry on the register which has not been extinguished under this Act. And Order 37 Civil Procedure Rules provides: “ (1) An Application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons (2) The summons shall be supported by an Adavit to which a certied extract of the title to the land in question has been annexed.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 8

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42. The provision of Article 162 (2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act, Cap. 22 confer jurisdiction on this court to handle claims premised on adverse possession. 43. In the present case, the Plaintis averred that they had been in uninterrupted exclusive physical occupation of Plot No 307 and 308/II/MN measuring 1.488 and 1.659 Acres respectively for a continuous period of more than 12 years. According to them, the Respondent had shown no interest in this plot and neither had he for the said period, given any notice to vacate possession to the Applicants from the suit land. The Respondent’s rights and/or interest in all parcels of land known as Plot No 307and 308/II/ MN measuring 1.488 and 1.659 Acres respectively vis-à-vis those of the Applicants have been extinguished. 44. In the case of: “Kimani Ruchure – Versus - Swift Rutherfords & Co. Ltd (1980)KLR 10” Kneller J held that: “ the Plaintis have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).” 45. In the case of “Gabriel Mbui – Versus - Mukindia Maranya [1993] eKLR” adverse possession was dened as “ ..the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.” 46. From the evidence by PW – 1, she resided at Bombo, near Utange and was aware why she was in court. She recorded a statement in form of a supporting adavit on 18th July, 2019. She was in court due to Plots No. 307 and 308/II. She had been cultivating on the land from 2007 April and she was representing the others Plaintis. PW - 1 told the court that they never got them dierently. By then, the place was a forest. Crops would be eaten by wildlife. There was nobody claiming the land. When they realized that the crops were being destroyed they decided to construct on the land. PW - 1 stated that she had a permanent structure and she lived there. They conducted an ocial search and found the owner. Later they saw a lawyer and one Mr. James. Thereafter they saw some people claiming to be wanting to conduct a land survey exercise on the land. When the surveyors came they accompanied by the Chief. But they protested to a point they left pre – maturely. But later on they saw some notice published in the edition of “the Taifa Leo” newspaper demanding for the demolition of these strictures. They decided to le the suit. They conducted a search again and they found that the land was now registered to the Defendant. She told the court that she wanted to see papers indicating that the land belonged to Mr. Jama and for the Defendant to tell them how he acquired it. She adopted the statements produced. The list of documents was also produced and marked as Plainti Exhibit 1 to 16(a) to (j). According to PW - 2 he lived on the land from the year 2008 to the date of his evidence. He had two – semi permanent houses. PW 2 asked the court to check out the matter so that he is permitted to stay permanently with documentation. PW 2 conrmed that before year 2008, he was staying in Mombasa – Mtopanga area which was 3 kilometers from Bombo. He started cultivating the place. By the time they moved there; only 10 people were in occupation and the rest of the 85 people came in within one year i.e. 2009. His houses were temporary houses. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 9

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47. In the case of “M’ikiara M’rinkanya & Another – Versus - Gilbert Kabeere M’mbijiwe, Civil Appeal 124 of 2003 [2007] eKLR”, the Court held that:‘…From the above analysis, it is clear that a judgment for possession of land should be enforced before the expiry of the 12 years limitation period stipulated in section 7 of the Act. If the judgment is not enforced within the stipulated period, the rights of the decree holder are extinguished as stipulated in section 17 of the Act and the judgment debtor acquires possessory title by adverse possession which he can enforce in appropriate proceedings. So, quite apart from the authority of Lougher v Donovan [1948] 2 All ER 11, which we consider as still good law in this country, and the previous decisions of this Court, there is a statutory bar in section 7 of the Act for recovery of land including the recovery of possession of land after expiration of 12 years. It follows, therefore, that, to hold that execution proceedings to recover land are excluded from the denition of “action” in section 4 (4) of the Act would be inconsistent with the law of adverse possession… ..as regard recovery of judgment debts, the construction of Section 4 (4) of the Act by local courts barring recovery after 12 years, is as shown in Lowsley V Forbes [1999] 1 AC 329 , consistent with construction given by English Courts to Section 2 (4) of the Limitations Act 1939 and its predecessors for over 100 years that a judgment debt becomes statute barred after 12 years.’ 48. Further, in the case “Mbira – Versus - Gachuhi [2002] 1 EALR 137” the court stated as follows:“ .....a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption…” 49. Therefore, to determine whether the Applicants’ rights accrued the Court will seek to answer the following i. How did the Applicant take possession of the suit property? ii. When did he take possession and occupation of the suit property? iii. What was the nature of his possession and occupation? iv. How long has the Applicant been in possession? 50. Now on critical examination of the questions above to the instant case. The Plaintis have contended that they had been in possession of the suit property from 2008. It was the evidence of PW - 2 that by the time they moved there, the place was a forest and there were only 10 people were in occupation. It was later on that the rest of the 85 people came in within one year 2009. When the surveyors came they accompanied by the Chief. His houses were temporary houses. According to the Respondent, the transfer to him were made on the 15th January, 2008 ( evidenced by exhibit “IHN – 2” and “IHN – 3”). The Respondent purchased the said properties for value and was entitled to enjoy uninterrupted use of the same pursuant to Article 40 of the Constitution 2010. The Applicants had interfered, violated and contravened with the Respondent’s Constitutional right to property illegally. According to the Respondent, his prima facie investigations showed that the Applicants had merely erected temporary structures in the area and have not had uninterrupted use of the land (produced as exhibit a copy of the surveyor’s report marked as Annexture IHN-8). 51. From the evidence produced by both the Plaintis and the Defendant, the Plaintis claim to have gotten to the land in the year 2008 in which time they started cultivating. The year of entry into the land critical herein. From the said evidence, there is nothing to demonstrate there was any empirical https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 10

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documentary evidence that indeed the entered the land in the year 2008 as claimed. Juxtapose, prior to purchasing the land, the Defendant undertook due diligence of the suit land before 15th January, 2008. The result were hat there was no one on the suit property by that time. The suit was led on 18th July, 2019. Nonetheless, for the benet of doubt, assuming they entered the land the year 2008 which has been challenged, the computation amounts to 11 years at the time the suit was being led. 52. In the foregoing, it is my nding from the above that the Plaintis did not satisfy the requirements to be declared in the land adverse possession as they have not demonstrated to have been in actual possession of the land for 12 years. Their claim therefore fails. Issue No. b). Whether the Plaintis are entitled to the prayers sought 53. The Plaintis sought for the ownership and entitlement of the suit property known as plot number 307 and 308/II/MN by virtue of adverse possession. Where a party has not satised the principles to be considered when granting a claim for adverse possession then the same fails. In this instant case, the Plainti is not entitled to the prayers sought. To this end I make a nding that the suit fails in its entirety and should be dismissed. Issue No. c). Who bears the costs of the suit 54. It is now well established that costs is at the discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The Black Law Dictionary denes cost to means:“ the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” 55. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. It provides as follows;“ (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 56. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. 57. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 11

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case. In “Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR” the court noted that; “ The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-t-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances dier from case to case.” 58. In this case, as this Honourable Court has opined above, the Defendant/Respondent shall have the costs. VII. Conclusion and Disposition 59. In the end, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the preponderance of probabilities nds that the Plaintis have not established their case against the Defendant herein. Thus, the Court proceeds to make the following specic orders:a. That the suit by the Plaintis/Applicants as per the originating summons dated 18th July, 2019 led on the same day fails in its entirety and is hereby dismissed. b. That the Defendant/ Respondents shall have the costs to be paid by the Plaintis jointly and severally. It is so ordered accordingly. JUDGMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT MOMBASA THIS 28TH DAY OF MARCH 2025. ………………………………..……………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Judgement delivered in the presence of: M/s. Firdaus Mbula, the Court Assistant. Mr. Birir Advocate for the Plaintis/Applicants. M/s. Abdalla Advocate for the Defendant/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18751/eng@2025-05-28 12

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