Francisca Karimi M'Arimi v Frederick Gikunda Manyara

iv. That this Honourable Court be pleased to make any other order as it may deem fit to meet the end of justice including an order on costs. 3. The Originating Summons [OS]is premised on various ground which have been enumerated in the body thereof. The grounds are: the Plaintifi has been in continuous, open, and an uninterrupted possession of the suit property; the occupation has been adverse/hostile to the rights of the Defendant; the occupation has subsisted for a duration in excess of 12 years; the defendant has neither taken any steps nor actions to recover vacant possession; the defendant’s rights to the suit property have been extinguished; and the Plaintifi is now entitled to ownership of the suit property on the basis of adverse possession. 4. The Originating Summons is supported by two [2] sets of afidavits. The supporting afidavit is sworn on 13th May 2025 and wherein the deponent [Francisca Karimi M’Arimi] has reiterated the grounds contained in the body of the Originating Summons. In addition, the deponent has proceeded to and annexed a copy of the Green card/Register of the suit property showing that the property was previously registered in the name of M’Imanyala M’Itonga [now Deceased]; and thereafter the suit property was transmitted to and registered in the name of the defendant. 5. The second afidavit is the Replying afidavit sworn in response to the Counterclaim. The afidavit is sworn on 16th January 2026. The contents of the named afidavit are pertinent. The deponent has averred thus: the suit property was illegally allocated to M’Imanyara M’Itonga [deceased]; the said M’Imanyara attempted to evict the Plaintifi’s husband [now deceased]; M’Imanyara filed civil proceedings vide Meru HCC No. 78 of 2002; the said suit was never prosecuted; and the suit abated upon the death of the Plaintifi’s husband. 6. Additionally, the Deponent has posited that even though she [deponent] was never a party to the suit filed against her husband, she was however, joined into the said suit following the death of her husband. 7. Furthermore, the deponent has averred thus: the suit property was illegally registered in the name of the Defendant’s father; the registration in the name of the Defendant’s father was undertaken while the Plaintifi and family were in occupation of the suit property; the transfer and registration of the suit property in the name of the current defendant was irregular and fraudulent; and the Defendant did not acquire any lawful rights to and in respect of the suit property. 8. The deponent of the Replying afidavit has equally posited that the Defendant herein filed civil suit vide Githongo MCELC No. 266 of 2017; the suit sought eviction of the Plaintifi; the suit was however dismissed for want of prosecution. 9. Premised on the foregoing, the Plaintifi has now contended that same has been in occupation of the suit property from the year 1970s to date. To this end, the Plaintifi posits that she has therefore acquired/accrued adverse possessory rights to the suit property. The Plaintifi now seeks the various reliefs highlighted at the foot of the originating summons dated 13th May 2025. 10. The Defendant duly entered appearance; filed a replying afidavit; and thereafter filed a counterclaim dated 24th September 2025. The gist of the Defendant’s case is thus: the suit property was lawfully adjudicated to and in favor of M’Imanyara M’Itonga [now deceased]; upon the adjudication of the suit property in the name of the deceased, the deceased took possession and carried out assorted farming activities; the Plaintifi’s husband was aggrieved with the registration of the suit property in the name of the Defendant’s father; the Plaintifi’s husband together with others lodged an objection to the registration of inter alia the suit property; the objection was heard and dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 2

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11. Further, and in addition, the Defendant has also posited that following the dismissal of the objection, the Plaintifi’s husband and others filed an appeal to the Minister; the Appeal to the Minister was case number 137 of 1991; the Appeal was heard and dismissed. Thereafter, it has been contended that the Plaintifi’s husband and others filed Meru ELC No. 122 of 2007 and wherein same [Plaintifi’s husband and others] sought to impugn the registration of various titles inter alia the suit property. 12. Moreover, the Defendant has averred that the suit, namely; Meru ELC No. 122 of 2007 was heard and determined; the suit was dismissed as pertains to the suit property; and that the Plaintifi’s occupation of the suit property constitutes and amounts to trespass. 13. It is the Defendant’s further contention that the Plaintifi’s occupation; possession; and use of the suit property has never been uninterrupted. On the contrary, it has been posited that the Plaintifi’s occupation has been interrupted by various cases which were substantially filed by the Plaintifi’s husband [now deceased]; and the suit for recovery of vacant possession which was filed by the Defendant’s Father [now deceased]; and ultimately the suit filed by the Defendant in 2017. 14. Flowing from the foregoing, the Defendant has posited that the Plaintifi’s occupation of the suit property constitutes trespass and thus the Plaintifi and her children ought to be evicted. To this end, the Defendant has implored the court to issue the reliefs sought vide the counterclaim dated 24th September 2025. 15. The reliefs sought vide the counterclaim are: i. An order of eviction of the Defendant, her agents/servants/children/ employees/stafi or anyone claiming through her from land parcel number KIAMURI “A”/287, costs and interest of the suit. ii. Costs of the counterclaim. iii. Interest iv. Any other relief that the Court may deem fit to grant. 16. The Originating summons came up for directions on the 10th November 2025 whereupon the advocates for the parties agreed to canvass the summons by way of viva voce evidence. In addition, the parties also covenanted to file and exchange list and bundle of documents; list of witnesses and witness statements. 17. Based on the agreement by the parties, the court proceeded to and issued directions. The directions were: the Originating Summons and the supporting afidavits thereto be deemed as the Plaint; the replying afidavit and the annextures thereto be deemed as the statement of defence; the parties to file and exchange the requisite list and bundle of documents; witness statements and list of witnesses; and the hearing to proceed on the basis of oral evidence. 18. The Plaintifi’s case is premised on the evidence of four [4] witnesses. The witnesses are: Francis Kamau Ngugi, Francisca M’Arimi; Japheth Muriungi Tole, and Cyrus Gitonga. Same testified as PW1, PW2, PW3, and PW4, respectively. 19. PW1 was Francis Kamau Ngugi. The witness averred that same is a retired teacher. In addition, the witness testified that he is conversant with the facts of the matter. Moreover, the witness averred that he has since recorded a witness statement dated 22nd January 2026 and which statement the witness sought to adopt and rely on as his evidence in chief. To this end, the witness statement was duly adopted and constituted as the evidence in chief of the witness. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 3

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20. In addition, the witness averred that he is privy to and aware of the civil suit, namely; Meru HCC No. 122 of 2007. Furthermore, the witness posited that the suit was heard and determined. However, the witness clarified that the Plaintifi herein was not a party to the said suit. On the contrary, the witness averred that it was the Plaintifi’s husband [now deceased] who was the Plaintifi in the said suit. 21. The witness thereafter sought to tender and produce the Judgement in respect of Meru HCC No. 122 of 2007. There being no objection to the production of the Document, same [the Judgement in respect of the said suit] was duly produced and admitted as exhibit P1. 22. On cross-examination by learned counsel for the Defendant, the witness testified that the suit, namely; Meru HCC 122 of 2007 was heard and determined. In particular, the witness clarified that the suit was determined in the year 2019. Moreover, the witness posited that the Judgement in respect of the said suit stipulated that the people who were in occupation thereof were to remain in occupation. 23. While still under cross-examination, the witness averred that the total number of parcels of land which were being contested in respect of the named suit were twenty-four in number. The witness added that one of the parcels of land that was being contested was the suit property. 24. It was the further testimony of the witness that the suit property has been the subject of various court cases. Nevertheless, the witness conceded that he has not produced documents relating to the various cases which have afiected the suit property. 25. Additionally, it was the testimony of the witness that there was a case involving the suit property before the land adjudication. However, the witness averred that there was corruption at the adjudication. Nevertheless, the witness conceded that same has neither tendered nor adduced any evidence of the stated corruption. 26. The witness posited that the suit property is extensively developed. In particular, the witness averred that the suit property is currently being occupied by the Plaintifi and her children. 27. The second witness who testified in respect of the matter was Francisca Karimi M’Arimi. The same testified as PW2. 28. It was the testimony of the witness that she is the Plaintifi in respect of the subject matter. To this end, the witness averred that same [PW2] is conversant with the facts of the case. 29. In addition, the witness averred that she has since sworn an afidavit and which afidavit is indicated to have been sworn on 13th May 2025. Thereafter, the sought to adopt and rely on the contents of the named afidavit as her evidence in chief. 30. Sufice it to state that the supporting afidavit sworn on the 13th May 2025; was duly adopted and constituted as the evidence in chief of the witness. 31. It was the further testimony of the witness that same has sued the defendant because the Defendant has gone to her [Plaintifi’s] land. Moreover, the witness posited that she has availed documents to show the ownership status of the land. 32. It was the further testimony of the witness that she has also filed another afidavit [Replying Afidavit to the Counterclaim] sworn on the 16th January 2026. The witness thereafter sought to adopt and rely on the contents of the named afidavit. 33. Sufice it to state that the replying afidavit in opposition to the counterclaim was duly adopted and constituted as further evidence in chief of the witness. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 4

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34. On cross examination by learned counsel for the defendant, the witness testified that the land in question was given to one MÁrimi. The land was not purchased. The witness averred that the land was subsequently transferred to and registered in her name. 35. While still under cross-examination, the witness posited that even though she claims that the land was registered in her name, she has not brought to court any evidence to show/demonstrate any such registration. 36. Furthermore, the witness testified that the same has indicated in her replying afidavit to the counterclaim that the land was fraudulently transferred to and registered in the name of M’Imanyara. Nevertheless, the witness posited that the land in question was given to her late husband. 37. While still under cross-examination, the witness testified that even though the land was registered in the name of M’Imanyara M’Itonga [deceased], the land lawfully belonged to her husband. In particular, the witness reiterated that the land in question is hers. 38. It was the further testimony of the witness that there have been several cases in respect of the suit property. However, the witness posited that she was not involved in the said cases. 39. The third witness who testified on behalf of the Plaintifi was Japheth Muriungi Tole. The witness testified as PW3. 40. It was the testimony of the witness that same is familiar/conversant with the facts of the case. Moreover, the witness averred that same has since recorded and filed a witness statement dated 22nd January 2026; and which statement the witness sought to adopt and rely on as his evidence in chief. To this end, the witness statement was duly adopted and constituted as the evidence in chief of the witness. 41. Additionally, the witness referenced the various photographs and which photographs the witness sought to produce before the court. There being no objection to the production of various photos as exhibits before the court, same were duly produced and admitted as exhibits P3 [Bundle] on behalf of the Plaintifi. 42. On cross examination by learned counsel for the Defendant, the witness testified that the suit property was not registered in his father’s name. On the contrary, the witness averred that the land was registered in the name of someone else. Moreover, the witness clarified that the someone else in whose name the suit property was registered summoned the Plaintifi and himself [the witness] to Githongo law courts. 43. Be that as it may, the witness testified that same is not conversant with the Defendant herein. 44. While still under cross examination, the witness testified that the suit property was registered in the name of his father up to the time when the appeal was mounted to the Minister. Nevertheless, the witness conceded that same has neither tendered nor produced any document to show that his father [now deceased] was ever registered as the owner of the suit property. 45. Regarding the case filed at Githongo Law Courts, the witness posited that the case was filed by the Defendant as against the Plaintifi herein. For good measure, the witness clarified that he was not a party to the said suit. 46. The fourth witness who testified on behalf of the Plaintifi was Cyrus Gitonga. The witness testified as PW4. 47. It was the testimony of the witness that same is also familiar with the facts of this matter. In addition, the witness posited that he has since recorded a witness statement dated 22nd January 2026, and which https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 5

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statement the witness sought to adopt and rely on. The witness statement was thereafter adopted and constituted as the evidence of the witness. 48. Be that as it may, the witness clarified that even though he has adopted the contents of the witness statements, paragraph 7 thereof is not correct. The witness thereafter sought to clarify that the persons who are residing on the suit property are the wife/widow of Stephen M’Arimi and her children. 49. On cross-examination by learned counsel for the Defendant, the witness testified that land parcel number 287 was sold to one Stephen M’Arimi by his [witness’s] brother. Moreover, the witness clarified that the land was sold in the year 1970s. The witness however clarified that he has not brought any document to show that the land was indeed sold to Stephen M’Arimi. 50. While still under cross examination, the witness testified that the land before the court has had various cases. The witness averred that the cases included: appeal to the minister; Meru HCC No. 122 of 2007; and another case which was filed in the year 2017. 51. Upon being referred to document number 4 at the foot of the Defendant’s list and bundle of documents, the witness averred that the document in question is a copy of the Judgement which was delivered on 22nd May 2019. In particular, the witness averred that he is aware of the said case. Moreover, the witness posited that when the Judgement was delivered, plot number 287 was mentioned. 52. Be that as it may, upon being pressed further, the witness conceded that the details of the plot 287 are not contained in the body of the Judgement. 53. With the foregoing testimony, the Plaintifi’s case was closed. 54. The Defendant’s case is premised on the evidence of one [1] witness. The witness is Frederick Gikunda Imanyara. Same testified as DW1. 55. It was the testimony of the witness [DW1] that same is the defendant in this case. In addition, the witness averred that he has since sworn a replying afidavit dated 24th September 2025; and recorded a witness statement dated 5th February 2026; and which statement the witness sought to adopt and rely on as his evidence in chief. Sufice it to state that the twin documents, namely; [Replying Afidavit and Witness Statement] were duly constituted as the evidence in chief of the witness. 56. Furthermore, the witness referenced the List and bundle of documents and thereafter sought to tender and produce the documents as exhibits before the court. There being no objection to the production of the documents, same were duly admitted and constituted as D exhibits 1 to 7, respectively. 57. On cross-examination by learned counsel for the Plaintifi, the witness testified that same was registered as the owner of the suit property in the year 2016. Furthermore, the witness posited that previously, the suit property belonged to and was registered in the name of his father, namely, M’Imanyara M’Itonga [deceased]. 58. It was the testimony of the witness that his father [now deceased] indeed took possession of the suit property; developed same; and undertook assorted farming activities thereon. However, the witness clarified that he has not undertaken any development[s] on the suit property. 59. While still under cross examination, the witness testified that the suit property is currently being occupied by the Plaintifi herein. In particular, the witness averred that the Plaintifi entered in the suit property on or about the year 2012. The witness maintained that the actions by/on behalf of the Plaintifi constitutes trespass. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 6

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60. Regarding copies of the Pleadings/documents relating to Meru HCC No. 122 of 2007, the witness averred that same is the one who has brought the documents before the court. In particular, the witness referenced the Judgement arising out of the said case. 61. Regarding whether plot number 287 was mentioned/captured in the Judgement, the witness averred that the said plot was only mentioned/referenced in the proceedings, but not in the Judgement. 62. While still under cross-examination, the witness testified that the suit property was transferred and registered in his name prior to and before the delivery of Judgement in Meru HCC 122 of 2007. 63. The witness further testified that because the Plaintifi and her children have trespassed on to the suit property, same [witness] was constrained to and indeed issued an eviction notice to the Plaintifi. The witness further averred that he also filed a suit as against the Plaintifi herein. Nevertheless, the witness clarified that the suit [eviction proceedings] was never heard/determined on merits. 64. On further cross-examination, the witness testified that same has since filed a counterclaim before this court. The witness added that the counterclaim seeks, inter alia; eviction of the Plaintifi. 65. With the foregoing testimony, the Defendant’s case was closed. 66. Following the conclusion of the hearing, the advocate[s] for the parties sought time to file and exchange written submissions. To this end, the court issued directions as pertains to the filing and exchange of the said submissions. In particular, the court directed thus: the Plaintifi shall file and serve written submissions within 14 days from the date of the directions; the Defendant shall be at liberty to file and serve written submissions within 14 days from the date of service and the Plaintifi shall be at liberty to file and serve rejoinder submissions within 7 days from the date of service. 67. The Plaintifi filed written submissions dated 2nd April 2026; and wherein the Plaintifi has highlighted four [4] key issues. The issues are: the suit property was illegally, fraudulently, and unprocedurally registered in the name of M’Imanyara M’Itonga in 1992; the registration in question did not confer/ vest upon M’Imanyara M’Itonga any lawful rights to the suit property; the transfer to and in favor of the Defendant was equally fraudulent and unprocedural; and the Plaintifi has been in open, continuous, and uninterrupted occupation of the suit property. 68. Learned counsel for the Plaintifi has thereafter cited and referenced various decisions to buttress the contention that the transfer and registration of the suit property in the name of M’Imanyala M’Itonga was fraudulent and illegal. The cases cited are: Elijah Makeri Nyamwala vs Stephen Mungai Njuguna & Another [2012] eKLR; Alice Chemutai Too vs Nixon Kipkurui Korir & 2 others [2015] eKLR; and Alberta Mae Gaccii vs Attorney General & 4 others [2000] eKLR. 69. Regarding the contention that the Plaintifi has since acquired adverse possessory rights to the suit property, Learned Counsel for the Plaintifi has cited and referenced inter alia Wambugu vs Njuguna [1983] eKLR and Githu vs Ndeete [1984] eKLR. 70. Flowing from the foregoing, learned counsel for the Plaintifi has invited the court to find and hold that the Plaintifi has established/proved the claim for adverse possession on a balance of probabilities. In the circumstances, the court has been implored to allow the Plaintifi’s claim and to grant the remedies sought. 71. The Defendant filed written submissions. The Defendant has adopted and reiterated the evidence on record and thereafter highlighted three [3] key issues. The issues are: the Plaintifi has not proven/ established the plea of adverse possession; the Plaintifi’s occupation of the suit property has been https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 7

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interrupted by a plethora of suits; and the Defendant has established a basis to warrant the grant of the reliefs sought vide the counterclaim. 72. Flowing from the submissions on behalf of the Defendants, learned counsel for the Defendant has contended that the Plaintifi’s suit is devoid of merits. The court has been invited to dismiss the suit and to award costs to the defendants. 73. On the contrary, it has been posited that the Defendant has placed before the court suficient material to demonstrate that same is the lawful and Bonafide owner of the suit property and that the orders for eviction are merited. The court has been invited to allow the counterclaim with costs. 74. Having reviewed the originating summons dated 13th May 2025; the supporting afidavit of even date; the replying afidavit in response to the counterclaim; the response to the originating summons; the counterclaim by the Defendant; and upon considering the evidence tendered [both oral and documentary]; and bearing in mind the submissions by/on behalf of the respective parties, I conclude that the determination of the subject matter turns on three [3] key issues. The issues are: Whether the plaintifi has established the requisite ingredients towards proving the plea of adverse possession or otherwise; Whether the defendant has proven entitlement to the suit property; and What reliefs/ remedies [if any] ought to issue in respect of the instant matter. 75. Regarding the first issue, it is common ground that whosoever seeks to succeed on a claim for adverse possession, the Plaintifi herein not excepted, is obligated to tender and place before the court cogent evidence demonstrating open, continuous, and an uninterrupted occupation of the designated property. 76. The evidence to be tendered and adduced by the claimant, and in this case the Plaintifi, must show/ establish the following: i. Open, continuous and an uninterrupted possession. ii. The possession must not be secretive. iii. The possession must not be by force. iv. The possession must not be consensual or permissive. v. The possession must be adequate in publicity and notoriety. vi. The possession must have attained the minimum statutory/prescribed duration. 77. Notably, the law as pertains to the key elements that must be established/proven before the plea for adverse possession can be decreed is now settled. 78. In the case of Songoi v Songoi (Civil Appeal 110 of 2016) [2020] KECA 942 (KLR) (31 January 2020) (Judgment), the Court of Appeal highlighted the element[s]. 79. The Court stated thus: “ 40. A person who claims adverse possession must inter alia show: (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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 8

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(d) for how long his possession has continued and (e) that the possession was open and undisturbed for the requisite 12 years.” 80. Additionally, it is also important to take cognizance of the holding in the case of Alfred Welimo -vMulaa Sumba Barasa, CA No 186 of 2011[unreported]. The Court of Appeal underscored that mere possession without more does not sufice to establish the plea of adverse possession. For good measure, the court underscored that the possession must meet the threshold of nec vi, nec clam, nec precario. 81. The court expressed itself thus: “ It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s manual of the Law of Property, 5th ed. page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So, the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land….” 82. Back to the subject matter. The Plaintifi contended that when she got married to Stephen M’Arimi [now deceased], she was settled on the suit property. In addition, the Plaintifi averred that she has lived on the suit property from the year 1970s to date. To this end, it was the Plaintifi’s position that she has been occupation/possession of the suit property for a duration of more than 50 years. 83. Based on the fact of her occupation, the Plaintifi now posits that she has acquired title to and in respect of the suit property. However, the Plaintifi conceded during cross-examination that the suit property has been subject of various proceedings including objection proceedings; appeal to the minister; and Meru HCC No. 122 of 2007, the latter which was heard and determined vide Judgement delivered on 22nd May 2019. 84. It is instructive to note that in the various cases which were duly alluded to and captured in the body of the proceedings and in particular Meru HCC No. 122 of 2007 [exhibit P1], the Plaintifi’s husband and subsequently the Plaintifi herein [who was joined as a legal representative] was claiming ownership of the suit property. It then means that up to and including the year 2019, the Plaintifi’s contention was that the suit property belonged to her husband and by extension herself. 85. To my mind, the Plaintifi herein could not and cannot purport to be the lawful owner of the suit property while at the same time propagating the plea of adverse possession. It is common ground that a claim to be the lawful/beneficial owner of a designated property cannot be canvassed simultaneously with the plea of adverse possession. 86. In my humble view up to and including 2019 when Meru HCC No. 122 of 2007 was determined, the claim for adverse possession was not maintainable. If anything, the plea for adverse possession could only [if at all] commence from the time when the Judgement was delivered and not otherwise. Sufice it to state that the Judgment in question terminated the Plaintifi’s Claim to be the owner of the Suit Property. 87. In the case of Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR), the Court of Appeal underscored that a claimant cannot purport to be the lawful/ beneficial owner of the property https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 9

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in question, while at the same time propagating a plea of adverse possession. For the avoidance of doubt, the court clarified that the claim for adverse possession is mutually inconsistent to a claim for [sic] beneficial/lawful ownership. 88. The court stated thus: “ A claim for adverse possession is inconsistent with the claim for being a beneficiary of the estate of a deceased person. In the original suit, the appellants did not concede that indeed the respondent was the true owner of the suit property.” 89. Moreover, it is not lost on me that even during her testimony [Evidence-in Chief] before the court, the Plaintifi [PW2] maintained that the suit property lawfully belongs to her. 90. The witness testified thus: “ I have sued the Defendant because he came to my land and contended that the land is his.” 91. Moreover, and while under cross-examination by learned counsel for the Defendant, the witness is also on record stating thus: “ I am the one who was given the land. The land was given to my late husband. I don’t have any document to show that my husband was the owner of the land. I do wish to confirm that the land is mine.” 92. Surely, the Plaintifi herein cannot contend that the suit property lawfully belongs to her and in the same breath propagate [canvass] the plea for adverse possession. Such conduct amounts to approbating and reprobating. It also amounts to abuse of the Court process. 93. Be that as it may, there is no gainsaying that the position taken by the Plaintifi negates the plea of adverse possession. 94. The next aspect that merits consideration relates to the contention that the registration of the suit property in the name of M’Imanyara M’Itonga [now deceased] who was the Defendant’s predecessor was fraudulent. The Plaintifi filed a reply to the counterclaim vide replying afidavit sworn on 16th January 2026. The Plaintifi posited that the allocation and registration of the suit property to M’Imanyara [now deceased] was fraudulent, illegal, and unprocedurally. Further, and in addition, the Plaintifi has equally posited that the transfer in favor of the Defendant was equally fraudulent. 95. What I hear the Plaintifi to be contending is that the acquisition and ultimate registration of the suit property in the name of M’Imanyara M’Itonga [now deceased] and subsequent transmission thereof to the defendant was fraudulent. Simply put, the Plaintifi is not conceding that the suit property lawfully belongs to the Defendant. 96. To the extent that the Plaintifi has impleaded fraud; illegality; and unprocedurality in the acquisition of the suit property, then the Plaintifi cannot in the same vehicle [suit] propagate a claim for adverse possession. Instructively, the cause of action of fraud is not only antithetical to, but is also mutually inconsistent with the plea for adverse possession. The two claim[s] cannot be driven in the same vehicle; and at the same time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 10

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97. In the case of Mwalimu & 6 others v Halal & another (Civil Appeal E036 of 2023) [2025] KECA 1186 (KLR) (4 July 2025) (Judgment), the Court of Appeal reafirmed and reiterated that the plea of fraud defeats the claim for adverse possession. The court stated thus: “ “ 21…. As we have already observed, a claim in adverse possession is incompatible with a claim in fraud. 22. In this regard, we are persuaded by the decision of the High Court of Kenya at Malindi in Haro Yonda Juaje v Sadaka Dzengo Mbauro & another [2014] KEHC 6665 (KLR) where the court aptly held that: 29. 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. If the Plaintifi's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for the rectification of title by cancellation pursuant to the provisions of Section 143 of the Registered Land Act and not adverse possession.” 23. In the same vein, the Environment & Land Court at Nairobi in Njue v Matiabe & 3 others [2023] KEELC 17361 (KLR) rightly emphasised that: “the moment the person claiming adverse possession contests and impugns the validity of the registered proprietors title, the claim for adverse possession is defeated and thus becomes legally untenable. In such a situation, the claimant is at liberty to pursue a cause of action for fraud or better still, trust, which causes of action are antithetical to and cannot co-exist with a claim for adverse possession.” 98. In my considered view, for as long as the Plaintifi herein holds the position that registration in favor of the Defendant and that of his predecessor-in title, were fraudulent/illegal; the claim for adverse possession dissipates into thin air. 99. Consequently, and in this regard, the Plaintifi is non-suited. 100. The last aspect in an endeavour to discern whether the claim for adverse possession can sufice touches on and concerns the legal implication and efiect of the various court cases that had been instituted pertaining to and in respect of the suit property. It is common ground that the suit property was one of the properties that were being litigated upon by the Plaintifi’s husband [now deceased] and others vide Meru HCC 122 of 2007. 101. Additionally, it is worth noting that in the said suit, the Plaintifi’s late husband and his co-plaintifis sought to impeach the registration of various parcels of land, inter alia the suit property. The court [Lady Justice LN Mbugua-Judge] delivered the judgement on 22nd May 2019. Instructively, the court did not cancel or nullify the title in respect of the suit property. 102. Other than Meru HCC NO. 122 of 2007 [details in terms of the preceding paragraph] there is also the suit which was filed by the Defendant in his endeavour to recover vacant possession. The suit was Meru ELC NO. 266 of 2017. Though the suit was never heard and concluded on merits, the existence of the said suit disrupted/interrupted the running of time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 11

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103. It is common ground that a claim for adverse possession can and is ordinarily interrupted if: The claimant acknowledges the title of the registered owner; the registered owner asserts his/her rights by entering; the Registered makes an efiective entry onto the Land; and most importantly, where the registered owner files a suit for recovery of vacant possession. 104. In the case of Njuguna Ndatho v. Masai Itumo, Mateo & Nguli Kyalo [2002] KECA 324 (Nakuru Court of Appeal), the Court of Appeal highlighted the position thus: “ Time which has begun to run under the Act is stopped either when the owner asserts his right or when his right is admitted by the adverse possessor. Assertion of right occurs when the owner takes legal proceedings or makes an efiective entry into the land. The old rule was that a merely formal entry was suficient to vest possession in the true owner and to prevent time from running against him….” [see also Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another [2015] eKLR]. 105. Flowing from the foregoing, what becomes apparent is that the Plaintifi’s claim for adverse possession is not only premature and misconceived, but same is legally untannable. Moreover, there is no gainsaying that the claim by the Plaintifi was/is built on quick sand; and same was doomed from the onset. 106. Turning to the second issue, namely; whether the Defendant has established his entitlement to the suit property or otherwise, it is imperative to reiterate that the suit property arose from the adjudication process. The suit property was lawfully adjudicated to and registered in the name of M’Imanyala M’Itonga [now deceased]. The said deceased was the father of the defendant. 107. There is also evidence that upon the adjudication of the suit property in the name of M’Imanyala M’itonga, Stephen M’Arimi- now deceased and who was the husband of the Plaintifi; and Other Co-Claimants, lodged objection[s] against various properties, inter-alia; the suit property. The objection[s], namely, Objection Number[s] 78 to 107 [inclusive] were heard and determined. For good measure, the land adjudication oficer did not find merit in the various objection[s]; and same were duly dismissed. 108. Fast forward, the Plaintifi’s husband [now deceased] and his co-claimants, were [sic] aggrieved; and same mounted an appeal to the minister. Notably, the appeal which sought to impugn various titles including the Title of the suit property were not successful. 109. Undeterred, the Plaintifi’s late husband and his co-claimants moved to court and filed Meru HCC No. 122 of 2007. The claimants therein sought various reliefs. Of relevance, was the plea challenging the registration of the suit property in the name of M’Imanyara M’Itonga [now deceased]. 110. Sufice it to state that the said matter was heard and determined vide Judgement rendered on 22nd May 2019. The learned Judge did not impeach or impugn the registration in favor of M’Imanyala M’Itonga [now deceased]. 111. The bottom line is that the title to and in respect of the suit property was maintained and sustained. The registration in favor of M’Imanyara M’ Itonga was afirmed. To this end, the suit property lawfully forms part of the estate of M’Imanyara M’Itonga- deceased, and was lawfully transmitted to and registered in the name of the Defendant. 112. I must also state that the Plaintifi herein cannot continue to challenge the legitimacy and propriety of the title in respect of the suit property on the basis of [sic] fraud, yet such a claim failed vide Meru HCC NO. 122 of 2007. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 12

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113. To my mind, the contention by the Plaintifi that the title to the suit property was acquired by fraud; illegality; or unprocedurally is Res Judicata.[See the holding in the case of Independent Electoral and Boundaries Commission versus Maina Kiai [2017] eKLR. 114. On the contrary, evidence abound that the suit property lawfully belongs to the Defendant. The Defendant holds a certificate of title which emanated from the adjudication-demarcation process and thus same is lawful and valid in the eyes of the law. The Defendant is thus entitled to partake of and benefit from the statutory rights and privileges fiowing from such title [See sections 24 and 25 of the Land Registration Act, 2012]. 115. The scope of the rights and interests of the bona fide/registered owner of a land property were highlighted in the case of Embakasi Properties Limited & another v Commissioner of Lands & another [2019] KECA 1001 (KLR). 116. The Five judge bench of the Court of Appeal stated thus: “ Although it has been held time without end that the certificate of title is; “...conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof”, it is equally true that ownership can only be challenged on the ground of fraud or misrepresentation to which the proprietor named is proved to be a party. See section 23 of the repealed Registration of Titles Act. Section 26 of the Land Registration Act, named as proprietor is the absolute and indefeasible owner.” 2012 though not as emphatic as section 23 aforesaid on the conclusive nature of ownership, confirms that the certificate is prima facie evidence that the person. 117. Furthermore, it sufices to reference the holding in the case of Waas Enterprises Limited v City Council of Nairobi & another [2014] KEELC 605 (KLR). The court emphasized on the extent, scope, and tenor of the rights that accrue to the title holder. 118. The court stated thus: “ As a registered proprietor, the plaintifi is entitled to enjoy all proprietary rights to the exclusion of all others. This includes the right to exclusive possession of the suit land. The rights of a proprietor of land are set out in Sections 24 and 25 of the Land Registration Act, 2012.” 119. Premised on the foregoing, I encounter no dificulty in finding and holding that the Defendant herein is the lawful and Bonafide owner of the suit property and by virtue of such ownership, same is entitled to the statutory privileges attaching to such ownership. [See the Decision in the Case of Moya Drift Farm Limited versus Theuri [1973] EA]. 120. Moreover, I wish to point out that even though the Plaintifi had propagated the claim of fraud, illegality, and unprocedurality against the registration of the title in favor of the Defendant, the contentions were neither proven nor established. Instructively, the plea of fraud cannot just be thrown on the face of the court. It is settled that the plea of fraud must be pleaded; particularised; and thereafter proven on the basis of cogent evidence. [See Kuria Kiarie vs Sammy Magera (2018) Eklr; and Doshi versus Justice Charles Chemutut and Others [2025] KECA] 121. The next issue that falls for determination touches on and concerns the remedies [reliefs] available to the parties. It is worthy to recall that both the Plaintifi and the Defendant have raised claims and crossclaims before the court. Both claims merit consideration and determination, one way, or the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 13

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122. The Plaintifi had sought a declaration that same has since acquired adverse possessory rights to and in respect of the suit property. However, while discussing issue number one elsewhere herein before, I have found and held that the claim for adverse possession was premature; doomed; and legally untenable. 123. In the premises, it is apparent that the Plaintifi’s claim has not been proven or established. Notably, the Plaintifi bore the burden of proving the case. The burden has not been discharged [see section 107 of the Evidence Act, Chapter 80 Laws of Kenya]. 124. On the other hand, the Defendant filed a counterclaim and same sought an order of eviction as against the Plaintifi either by herself, agents, and, or servants. I wish to underscore that the title holder is entitled to vacant possession; and where there is any trespass onto the designated property, then an eviction order must issue, so as to protect the exclusive rights of the Registered owner. [See the decision in Mohanson [K] Limited versus Registrar of Titles [2017] eKLR]. 125. Having found and held that the Defendant is the lawful and Bonafide owner of the suit property; and bearing in mind the provisions of sections 24 and 25 of the Land Registration Act 2012 [2016], I am convinced that the Defendant has established a basis to warrant an order of eviction. 126. Regarding costs, it is imperative to highlight that costs ordinarily follow the event. The event means that whosoever succeeds at the conclusion of the matter, whether same be the Plaintifi or the Defendant, is entitled to costs. Nevertheless, it is not lost on me that court still retains discretion as to the award of costs and the proportion thereon. 127. Be that as it may, it is settled law that where the court is inclined to exercise the discretion otherwise and to depart from the established position of the law, then it behoves the court to provide sound and good reasons for doing so. In this case, there is no basis to warrant departure from the general principle. [See section 27 of the Civil Procedure Act]. Conclusion: 128. Flowing from the analysis alluded to elsewhere herein before, it must have become apparent that the Plaintifi’s case is devoid of merits. On the contrary, the Defendant has proven and established the counterclaim on a balance of probabilities. Final Orders: 129. Consequently, and in the premises, the final orders that commend themselves to the court are: a. The Plaintifi’s suit be and is hereby Dismissed. b. The Counterclaim be and is hereby allowed as hereunder: i. The Plaintifi/Defendant to the counterclaim be and is hereby ordered to vacate and handover vacant possession of the suit property [L.R No. Abothuguchi/Kiamuri “A”/287] within 120 days from the date of the Judgement. ii. In default to vacate and handover vacant possession in terms of clause [i] above, the Defendant/Counter claimer shall be at liberty to levy eviction. In this regard, an eviction order shall issue. iii. Furthermore, the costs and expenses of eviction [if any] incurred by the Defendant shall be certified by the Deputy Registrar and same shall be recoverable from the Plaintifi/Defendant of the Counter claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 14

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iv. 130. Upon eviction the Plaintifi by herself, agents, servants, employees, and, or her children shall be restrained from returning to, remaining on, dealing with, and or in any manner whatsoever interfering with the Defendant’s right to and in respect of the suit property. c. Costs of the suit be and are hereby awarded to the Defendant. d. Costs of the Counter claim be and are hereby awarded to the Defendant/Counter claimer. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH MAY, 2026. OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the Presence ofMr. Zakayo- Court Assistant Mr. Kaumbi for the Plaintifi Ms. Nyokabi H/B for Mr. Mutuma for the Defendant/Counter Claimer https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3254/eng@2026-05-28 15

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