Ochola v Omuga (Enviromental and Land Originating Summons E045 of 2025) [2026] KEELC 5363 (KLR)

to execute all instruments necessary to facilitate the transfer and registration of the suit land in the Applicant's name and that, in default, the Deputy Registrar of this court be at liberty to execute the transfer instruments in his favour; c) An order restraining the Respondent, whether by himself, his agents, servants and/or employees, from interfering with the Applicant's peaceful possession and occupation of the said 1.5 Ha of L.R. No. West Suna/Wiga/1441 in any manner whatsoever; d) That the costs of the Originating Summons be borne by the Respondent; and e) Such other or further orders as the court may deem fit and just to grant. Applicant’s Case 2. The Summons were premised on fifteen grounds set out on its face. It was supported by the Applicant's Affidavit sworn on 14th October 2025. In summary, the applicant's case was that L.R. No. West Suna/Wiga/1441 was registered in the name of the Respondent. He purchased the land from one Marcelus Nyamwanga Ogoya sometime in the year 2006, although the said vendor was not the registered owner. That he thereupon entered upon the suit land, established his homestead on it in that year and has occupied it continuously since. He deponed that he cultivates a portion of it, has used a portion for mining activities, planted trees on it and interred one of his children on it. JUDGMENT ELCOS E045 OF 2025 2

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3. He deponed further that his possession had been long, open, quiet, continuous, peaceful and uninterrupted for a period exceeding nineteen years. That he entirely depends on the suit land for his livelihood. he added that the Respondent has never taken or commenced any action to defeat or interrupt that occupation. He deponed further that his occupation, being adverse to the Respondent's interest, constitutes an overriding interest protected by Section 28 of the Land Registration Act, 2012. 4. Annexed to the Supporting Affidavit was a certified copy of the register of the suit parcel (MOO-1) and photographs said to depict the homestead, the cultivated and mined portions and the trees planted on the land which he marked as MOO-2, MOO-3 and MOO-4). Service and The Hearing 5. The Respondent did not enter Appearance. He did not file a Replying Affidavit or any other response and has at no stage of the proceedings attended court. Because the orders sought would divest him of registered land, I begin with the question of service. 6. Two Affidavits of Service sworn by Vitalis Onyango Akuku, a licensed court process server whose certificate of licence (S/No. CPS 2869) is on record, were on the file. In the first, sworn on 15th December 2025, the Process Server deponed that on 28th October 2025 he proceeded to the Respondent's home at Olasi village in Nyatike Sub-County with the Originating Summons, the Supporting Affidavit and JUDGMENT ELCOS E045 OF 2025 3

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the annextures thereto. That he explained the purpose of his visit and took the Respondent through the contents of the documents. He deponed further that the Respondent stated that he was already aware of the matter and accepted service but declined to endorse the return copy, saying he wished first to speak to the Applicant and that he retained his copies. The Respondent was known to the process server. 7. In the second affidavit, sworn on 27th April 2026, the Process Server deponed that on 25th April 2026 he served the Respondent personally at his home at Winjo, Muhuru, with the mention notice dated 23 rd April 2026 fixing the matter for mention on 29th April 2026, together with the Supplementary List of documents, the Certificate of Electronic evidence, the Applicant's trial bundle index and the Originating Summons with its Supporting Affidavit and annextures. The Respondent, who was personally known to the process server, once again accepted service but declined to endorse the return copy. 8. I am satisfied, on the strength of those two affidavits, that the Respondent was duly served both with the Originating Summons and with notice of the proceedings, and he was aware of this claim well before the hearing. Having been served and having elected to stay away from the proceedings. The matter accordingly came up for formal proof on 8th July 2026, when learned appeared for the Applicant and proceeded with the hearing. JUDGMENT ELCOS E045 OF 2025 4

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The Applicant's Evidence 9. PW1, Michael Ouma Ochola, testified that he hailed from Arombe and was a businessman. He confirmed that he had recorded a Witness Statement dated 14 th October 2025, which he adopted as his evidence in chief and which the court admitted as such. 10. PW1 further stated that he had filed a List of Documents dated 14th October 2025 and a Supplementary List dated 14th April 2026. He produced the documents therein in evidence. The certified copy of the register of L.R. No. West Suna/Wiga/1441 was produced as P Exh 1; the photographs were produced as P Exh 2(a) to (c) while the Certificate of Electronic Evidence dated 14 th April 2026, made under section 106B of the Evidence Act in respect of the photographs, was produced as P Exh 3. 11. In his Witness Statement, adopted as evidence in chief, PW1 stated that the suit parcel was registered in the Respondent's name. Further, he bought the land from Marcelus Nyamwanga Ogoya in the year 2006 even though the said vendor was not the registered owner of the land. He added that he moved onto the parcel and established his homestead there in 2006 and had continually occupied it since. He state that he cultivated a portion of it and had used a portion for mining. He had planted trees on it, he had further interred one of his children on it. Further, that his occupation had been long, open, continuous and uninterrupted for over nineteen years. He added that he JUDGMENT ELCOS E045 OF 2025 5

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entirely depended on the land for his livelihood, and the Respondent had never taken any step to defeat or interrupt that occupation. 12. In his testimony from the box PW1 stated that he had lived on the land for nineteen years. He prayed that the court gives him title to it. The Applicant's case and that of the defence were thereupon closed. 13. It is convenient to record here what the certified copy of the register (P Exh 1) discloses. The register of L.R. No. West Suna/Wiga/1441, West Suna/Wiga registration section, registry map sheet No. 26, was opened on 1st November 1988. The approximate area of the parcel was shown as 1.5 hectares. In Part B (proprietorship section), the Respondent John Owindo Omuga of P.O. Macalder Mines is shown as having been registered as proprietor on 1 st November 1988 and the nature of the title was shown in Part A as absolute. The Applicant's Submissions 14. Counsel for the Applicant filed written submissions dated 13th July 2026. Counsel framed two issues: whether the Applicant had proved his case on a balance of probabilities, and whether he was entitled to the costs of the suit. 15. On the first issue, counsel relied on Lewa v Mwagandi [2015] KECA 532 (KLR) for the meaning of adverse possession and on Munyaka Kuna Company Limited v Bernado Vicezo De Masi (The Administrator of the Estate of Domenico De Masi (Deceased) [2018] KEELC 3192 (KLR) for the elements a claimant JUDGMENT ELCOS E045 OF 2025 6

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must establish, namely factual possession coupled with the intention to possess, user that is neither by force nor by stealth nor with permission, knowledge on the part of the registered owner, and continuity of possession for the prescribed period of twelve years. 16. Counsel submitted that the Applicant entered into occupation in 2006 and remained in occupation thereon for nineteen years. That his cultivation, the trees, the grave, the homestead and the mining activity were established by the photographic evidence and demonstrated both the openness of the occupation and the intention to remain. Further, that the occupation was never interrupted by the registered owner and the Applicant's evidence was never rebutted, the Respondent having neither filed any document nor attended the hearing to cross-examine him. On that last point counsel cited Stephen Gachau Githaiga & another v Attorney General [2015] KEHC 655 (KLR) 17. On costs, counsel relied on Section 27 of the Civil Procedure Act and on Republic v Rosemary Wairimu Munene, Exparte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, Nyeri High Court Judicial Review Application No. 6 of 2014, for the proposition that costs are in the discretion of the court. That the basic rule is that costs follow the event, and that the rule was not meant to punish the losing party but to compensate the successful one. He urged that the summons be allowed with costs. Issues For Determination JUDGMENT ELCOS E045 OF 2025 7

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18. Having considered the Originating Summons, the Supporting Affidavit and its annextures, the evidence of PW1, the exhibits produced and the Applicant's submissions, I frame the following issues for determination: i. What is the appearance, effect and of to the what Respondent's standard must nonthe Applicant prove his claim? ii. What is the identity and extent of the land claimed? iii. Has the Applicant established the ingredients of adverse possession over that land? iv. What orders ought to issue, and who should bear the costs? 19. Analysis And Determination i. The effect of non-appearance and the standard of proof 20. The Respondent's failure to appear does not hand the Applicant a victory by default. The burden of proving the facts he asserts remains on the Applicant throughout the case, in accordance with Sections 107, 108 and 109 of the Evidence Act. In Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR) the Court of Appeal held that the burden on a Plaintiff to prove his case remains the same throughout the case, and that it is in no way lessened because the case is heard by way of formal proof, even JUDGMENT ELCOS E045 OF 2025 8

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though it may become easier to discharge where the suit is undefended. 21. The same court returned to the point in Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR), cautioning that before a trial court concludes that a claim is uncontroverted or proved on a balance of probabilities by reason of a Defendant's failure to call evidence, it must satisfy itself that the Plaintiff has adduced credible and believable evidence capable of standing in the absence of rebuttal. In Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), the court put it plainly; “A claimant must discharge the burden of proof however absent his opponent may be from the contest.” 22. Moreover, the suit was commenced by way of Affidavit evidence. Failure to have any response by way of affidavit evidence to controvert the depositions therein leaves the facts unchallenged. The only issue that then is left to the court to determine is whether the unchallenged evidence proves the claim to the required standard. 23. That said, evidence which is neither challenged in crossexamination nor answered by contrary evidence is, if credible, evidence upon which a court may properly act. See In re Estate of Karuru Munyororo (Deceased) [2020] KEHC 6975 (KLR), and the authority cited by counsel, Stephen Gachau Githaiga & another v Attorney General [2015] KEHC 655 (KLR). JUDGMENT ELCOS E045 OF 2025 9

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24. A claim of this nature calls for particular care. The order sought would strip a registered proprietor of land held under an absolute title, and it is sought in his absence. The Court of Appeal recently reiterated in Mwalimu & 6 others v Halal & another [2025] KECA 1186 (KLR) that occupation beyond the twelve-year limitation period does not of itself guarantee success in a claim for adverse possession. There is more to the doctrine than mere occupation. I have therefore examined the Applicant's unchallenged evidence with the care that such a claim demands, rather than accepting it simply because it stands alone. 25. The Limitation of Actions Act is the legal framework for claims of adverse possession. Section 7 of the Act is couched on the following terms:“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.” 26. The Act makes a further provision for adverse possession at Section 13 as follows: “ (1) A right of action to recover land does not accrue unless the land is in the possession of some JUDGMENT ELCOS E045 OF 2025 10

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person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land. (2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land. (3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12 (3), the land in reversion is taken to be adverse possession of the land.” JUDGMENT ELCOS E045 OF 2025 11

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27. Under section 38 of the Limitation of Actions Act, a party claiming land by adverse possession may approach the court for a declaration that the property devolved to him in accordance with the doctrine. Section 38(1) of the Act states as follows; “Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, 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 a proprietor of the land.” 28. These provisions have been expounded by a number of authorities. The first one this Court wishes to be guided by is the locus classicus of Mtana Lewa v Kahindi Ngala Mwagandi (2015) eKLR, wherein the court said:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such JUDGMENT ELCOS E045 OF 2025 12

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person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. 29. Therefore, for a claim of adverse possession to succeed certain conditions must be fulfilled. The Court of Appeal in the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] eKLR stated as follows:“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse JUDGMENT ELCOS E045 OF 2025 13

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is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College (1900)1 Ch.19, 21. 30. This court thus needs to know whether the plaintiff has tendered evidence to prove the nec vi, nec clam, nec precario principle. In Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others v Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR) the Court of Appeal held, “The burden of proving adverse possession lay with the 1st respondent who made the claim. That burden was to be discharged by him demonstrating, on a balance of probabilities, that his possession was adverse; open, JUDGMENT ELCOS E045 OF 2025 14

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peaceful, without consent of the 1 st and 2nd appellants and for an uninterrupted period of 12 years, expressed in Latin as nec vi, nec clam, nec precario. Or, as Lord Hoffmann put it in R. vs. Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1AC 335 at 350, 'not by force, nor stealth, nor the licence of the owner'. See also Kimani Ruchine vs. Swift Rutherford & Co.Ltd [1980] KLR on this point.” 31. In summary, the doctrine is anchored on sections 7, 13, 17 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 first accrued to some person through whom he claims, to that person. Then, Section 13(1) provides that a right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run. Section 17 provides that at the expiration of the period prescribed for bringing an action to recover land, the title of that person to the land is extinguished. Section 38(1) entitles a person who claims to have become entitled by adverse possession to registered land to apply to the Court, in this case the Environment and Land Court, for an order that he be registered as the proprietor of the land in place of the owner. JUDGMENT ELCOS E045 OF 2025 15

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32. Adverse possession claims may not be known from the register. Due diligence requires a physical visit to the suit land to ascertain them. Thus, Section 28 of the Land Registration Act, 2012 complements the provisions above by declaring rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions, or by prescription, to be overriding interests to which registered land is subject whether or not they are noted on the register. 33. Procedurally, Order 37 Rule 7 of the Civil Procedure Rules requires such a claim to be brought by Originating Summons, supported by an affidavit to which a certified extract of the title to the land is annexed. That requirement has been complied with, the certified copy of the register having been annexed as MOO-1 and produced in evidence as P Exh 1. The claim is also, correctly, brought against the person shown on that register as the registered proprietor. In Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR), the Court of Appeal held that a claim for adverse possession can only be maintained against a registered owner and that the relevant period runs from the date of that owner's registration. 34. The ingredients of the doctrine are settled. In Lewa v Mwagandi [2015] KECA 532 (KLR), the Court of Appeal described adverse possession as a situation in which a person takes possession of land and asserts rights over it while the person holding the title neglects to take action in JUDGMENT ELCOS E045 OF 2025 16

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assertion of that title for the statutory period of twelve years. The doctrine is set in motion by the default or inaction of the owner, the possession must be neither forceful nor stealthy nor under the licence of the owner and it must be adequate in continuity (that is for a minimum of twelve years), in publicity and in extent to show that it is adverse to the title owner. 35. In Sisto Wambugu v Kamau Njuguna [1983] KECA 69 (KLR) the Court of Appeal held that the proper way of assessing proof of adverse possession is to ask whether the title holder has been dispossessed or has discontinued his possession for the statutory period, rather than merely to count the years during which the claimant has used the land. In Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] KECA 402 (KLR), approved in Mwalimu & 6 others v Halal & another (above), the court restated that the claimant must prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse occupation for an uninterrupted period of twelve years, as captured in the maxim nec vi, nec clam, nec precario. 36. Finally, in Mbui v Maranya [1993] KEHC 161 (KLR), Kuloba J. emphasised that the burden of proving title by adverse possession lies on the person asserting it, that what must be proved are the three adequacies of continuity, publicity and extent, and that the adverse JUDGMENT ELCOS E045 OF 2025 17

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character of the intruder's possession must be proved as a clear fact and cannot be assumed as a matter of law from mere exclusive possession, however long continued. 37. Drawing from those threads together, the Applicant must establish first, the identity of the land and of its registered proprietor. This he has to do by presenting before the court an extract of title (or a Certificate of Official Search in case of registered land in that regime). Secondly, actual physical possession of the land (the factum) accompanied by the intention to possess it as his own (the animus possidendi). Thirdly, that his possession has been without force, without secrecy and without the permission or licence of the registered proprietor. Fourthly, that it has been open and notorious, such that the owner knew or ought to have known of it and finally, that it has been continuous and uninterrupted for at least twelve years before the filing of the suit. ii. What is the identity and extent of the land claimed? 38. The Register produced as P Exh 1 shows the approximate area of L.R. No. West Suna/Wiga/1441 as 1.5 hectares. The Applicant's prayers are for 1.5 Ha of that parcel. It follows that what is claimed, though described in the summons as a part of the original parcel, is in substance the whole of it. Nothing turns on the description, the extent claimed and the extent of the parcel are one and the same. JUDGMENT ELCOS E045 OF 2025 18

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39. There is, however, a discrepancy in the papers which I must address. Paragraph 14 of the Supporting Affidavit, and the corresponding paragraph of the witness statement, speak of the applicant's possession of "the 5.3 acres of the suit land". It cannot be disputed that 1.5 hectares is approximately 3.7 acres. The reference to 5.3 acres cannot therefore be correct, and it is inconsistent both with the Register and the prayers on the face of the Summons. It appears to me to be an error of drafting carried over from another matter, of a piece with the references in the same documents to a "1st Respondent" and to "Defendants" in the plural where there is only one Respondent, and with the reference to the Applicant as "she" in the submissions. While this Court always reminds parties to be frugal in their pleadings I find these typographical errors minor and disregard them. The claim before me is a claim to the whole of L.R. No. West Suna/Wiga/1441 measuring approximately 1.5 hectares. 40. Since the claim relates to the parcel in its entirety, no question of survey, excision, or preparation of mutation forms arises. Unlike in George Were Nyakora v Fredrick Odhiambo Chiambe [2022] KEELC 349 (KLR), where a defined portion of a larger parcel had to be excised and the Land Registrar was directed to survey and ascertain it. The evidence of a homestead, a cultivated area, planted trees, a mining area and a grave is consistent with occupation of the JUDGMENT ELCOS E045 OF 2025 19

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entire parcel of one and a half hectares, and there is no evidence to the contrary. iii. Factual possession and the intention to possess 41. The Applicant's evidence is that he entered the suit land in 2006 and established his homestead on it. That he cultivates part of it, mines part of it, has planted trees on it and that he has buried one of his children on it. Those are not fugitive or occasional acts. A homestead, standing crops, planted trees and a grave are among the most permanent and visible marks a person can place upon land. 42. The photographs produced as P Exh 2(a) to (c), whose provenance is accounted for by the Certificate of Electronic evidence produced as P Exh 3, depict a homestead with iron-roofed structures, persons at work in what appears to be a cultivated field and a person carrying harvested produce among trees. I bear in mind that the certificate states that the images were captured on 15 th July 2024. The photographs therefore speak directly to the character and quality of the Applicant's occupation rather than to its full duration. The duration rests on the Applicant's own sworn and unchallenged testimony. Taken together, however, the two are mutually consistent. The physical features shown in the photographs are not those of a recent entry. 43. As to the animus possidendi, the acts relied upon are consistent with an intention to hold and use the land as of right and not merely as a temporary occupant. The JUDGMENT ELCOS E045 OF 2025 20

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establishment of a homestead, cultivation, planting of trees and, in particular, the interment of a child on the land are acts indicative of a settled and enduring occupation. The requirement of a clear intention to hold adversely under a claim of right, coupled with de facto use and occupation, as was considered in Kweyu v Omuto [1990] KECA 63 (KLR), where it was held,”... In other words, adverse possession must rest on de facto use and occupation. To make a possession adverse, there must be an entry under a colour of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use, done publicly.” 44. I am satisfied that the Applicant has proved both the factum of possession and the animus possidendi. iv. Whether the possession was non-permissive 45. This is the heart of the matter, for possession enjoyed by the leave and licence of the registered proprietor can never be adverse to him, however long it lasts. That was the fate of the claim in Mwalimu & 6 others v Halal & another (above), where the Claimants occupied as tenants and then as licensees of the registered owner. 46. On this issue the Applicant's papers contain an internal contradiction which I must resolve. Paragraph 4 of the Supporting Affidavit, the corresponding paragraph of the Witness Statement and the Applicant's evidence in court JUDGMENT ELCOS E045 OF 2025 21

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are all to the effect that he bought the land from Marcelus Nyamwanga Ogoya, who was not the registered owner. Paragraph 10 of the same affidavit, and ground 8 of the summons, however, assert that consideration under the sale agreement was fully paid by the Applicant "to the 1 st Respondent". There is only one respondent in this suit, and no sale agreement was produced. 47. I have no difficulty in preferring the first version. It is stated three times, including on oath from the witness box, it identifies the vendor by name, and it is against the Applicant's apparent interest in the sense that it concedes that he bought from a person who had nothing to sell. The reference to payment to the "1 st Respondent" is of a piece with the other drafting slips already noted and I treat it as such. 48. On that finding, the position is straightforward. Marcelus Nyamwanga Ogoya was not the registered proprietor.There is no evidence that he had authority from the Respondent to permit the Applicant's occupation. His purported sale therefore did not constitute permission or licence from the registered proprietor. The validity or otherwise of the purported sale is not material to the present claim, which is founded not on the contract but on the Applicant's subsequent possession of the land as against the registered proprietor. The Applicant does not claim through the sale, he claims in spite of it. When the Applicant entered the suit land in 2006 he entered as a trespasser as against the JUDGMENT ELCOS E045 OF 2025 22

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registered proprietor, and his possession was adverse to that proprietor from the date of entry. 49. In George Were Nyakora v Fredrick Odhiambo Chiambe [2022] KEELC 349 (KLR), the court reached the same conclusion on similar facts, holding that a Claimant who entered under a sale agreement with a person who was not the registered owner did not have the licence or permission of the registered owner, and that prescriptive rights of that kind override the interest of a registered proprietor. 50. Even if I were wrong in preferring the first version, the result would not be different. If the Applicant had purchased the land from the registered proprietor and paid the purchase price in full in 2006, the limitation period would, on the authority of Public Trustee v Wanduru Ndegwa [1984] KECA 72 (KLR), have commenced from the date of such (full) payment. This is because that which would give the seller authority and permission to another over the land would have ended upon the conditions of sale being honoured. Thus, the twelve years would therefore have expired in 2018, well before the filing of this suit in October 2025. On either version of the Applicant's entry, therefore, the limitation period had run its course before the suit was filed. 51. I should add that this is not a case in which the Applicant takes mutually inconsistent positions by impugning the very JUDGMENT ELCOS E045 OF 2025 23

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title which he seeks to extinguish. The Applicant expressly pleads and accepts that the Respondent is the registered proprietor. There is therefore no inconsistency of the kind considered in Njue v Matiabe & 3 others [2023] KEELC 17361 (KLR) and Haro Yonda Juaje v Sadaka Dzengo [2014] KEHC 6665 (KLR), Mbauro as cited & with another approval in Mwalimu & 6 Others v Halal & Another (above) where the Courts stated that a claimant cannot succeed in adverse possession without first conceding that the registered proprietor is the true owner. v. Openness, continuity and the running of time 52. The Respondent was registered as proprietor on 1 st November 1988, some eighteen years before the Applicant's entry, so there is no difficulty of the kind considered in Chevron (K) Limited v Harrison Charo wa Shutu (above) about time running against a person who was not yet on the Register. 53. The Applicant's occupation was open and notorious. He did not creep onto the land or occupy it by stealth. He built a homestead, farmed, planted trees, mined and buried a child there: anyone could see his occupation. Put clearly, acts of that character are apparent to anyone who cares to look, and a registered proprietor exercising the ordinary diligence expected of an owner would have known of them. 54. There is no evidence of any interruption. The Respondent has never sued the Applicant, never entered the land, never JUDGMENT ELCOS E045 OF 2025 24

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made any demand of him and never obtained any order against him. There is no evidence that the Respondent ever entered the land, demanded possession, instituted proceedings for recovery, or otherwise interrupted the Applicant's possession. Applying Wambugu v Njuguna (above), the question is whether the title holder has been dispossessed or has discontinued his possession for the statutory period, and on the evidence before me the answer is plainly yes. The Respondent has done nothing at all about this land for nineteen years. His silence in the face of these very proceedings, of which he was twice served, is of a piece with that inaction. 55. Of the length of time, counting from the Applicant's entry in 2006, the twelve-year period prescribed by section 7 of the Limitation of Actions Act expired in 2018. By the time this suit was filed on 21st October 2025 the Applicant had been in adverse possession for some nineteen years. The pleaded assertion that the period exceeds twenty years is, on the evidence, an overstatement, but nothing turns on it. The statutory threshold is twelve years. It has been proven that it was comfortably exceeded. vi. Conclusion on the claim 56. Taking the evidence as a whole, and testing it with the care required where a registered proprietor is absent, I find it credible, internally consistent in all material respects and sufficient to stand without rebuttal. I find that the Applicant has proved, on a balance of probabilities, that he has been JUDGMENT ELCOS E045 OF 2025 25

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in actual, open, notorious, exclusive and uninterrupted possession, without force, stealth or permission, of the whole of L.R. No. West Suna/Wiga/1441 measuring approximately 1.5 hectares, without the force, stealth or permission of the registered proprietor, from the year 2006 to date, a period well in excess of twelve years. 57. It follows that the Respondent's right of action to recover the suit land became barred by Section 7 of the Limitation of Actions Act. His title to it was extinguished by operation of Section 17 of that Act. The Applicant is entitled to an order under Section 38(1) that he be registered as the proprietor of the suit land in place of the respondent. vii. The prayer for an injunction 58. The relief sought under Prayer (c) is a permanent injunction. No evidence was led of any act or threat of interference by the Respondent. Indeed the whole burden of the Applicant's case is that the Respondent has done nothing whatsoever in relation to this land for nineteen years. Once the orders in prayers (a) and (b) issue, the Applicant will hold the land as registered proprietor and will have the ordinary remedies of a proprietor available to him should the occasion for them arise. In those circumstances an injunction is unnecessary but peradventure that the Respondent or his servants, agents or anyone claiming under him ever comes forth after this judgment, let is be known to them all that they are not welcome to it. They are thus barred by way of the injunction claimed, which I hereby grant. JUDGMENT ELCOS E045 OF 2025 26

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59. Costs are in the discretion of the court, under Section 27 of the Civil Procedure Act. Ordinarily they follow the event unless for good reason the court directs otherwise. The Applicant has succeeded and, applying the ordinary rule, he would be entitled to his costs. But the Respondent did not enter appearance, file a response or participate in the proceedings. There was therefore no contested litigation occasioned by any conduct on his part. Why recover costs from a party who did not bother to vex the Claimant by litigation? In the circumstances, and in the exercise of my discretion under section 27 of the Civil Procedure Act, I consider it just that each party bear his own costs. 60. For the foregoing reasons, judgment is entered for the Applicant against the Respondent in the following terms: a) A declaration is hereby issued that the Respondent's right to recover L.R. No. West Suna/Wiga/1441, measuring approximately 1.5 hectares, is barred by Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya, and that the Respondent's title to the said parcel stands extinguished by virtue of Section 17 of the said Act. b) A declaration is hereby issued that the Applicant, Michael Ouma Ochola, has acquired title to the whole of L.R. No. West Suna/Wiga/1441, measuring approximately 1.5 hectares, by adverse possession. JUDGMENT ELCOS E045 OF 2025 27

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c) An order is hereby issued that the Applicant be registered as the proprietor of L.R. No. West Suna/Wiga/1441 in place of the Respondent, John Owindo Omuga. d) The Respondent shall upon presentation of, within thirty (30) days of the date of this judgment, execute all documents and instruments necessary to give effect to order (c) above, and in default the Deputy Registrar of this court shall be at liberty to execute the same on his behalf and in his stead. e) Upon presentation of a certified copy of the decree herein to the Land Registrar, Migori, the Land Registrar shall rectify the register of L.R. No. West Suna/Wiga/1441 accordingly and issue a certificate of title in the Applicant's name on payment of the requisite fees. f) The prayer for a permanent injunction is issues in terms of prayer (b) of the Summons. g) Each party shall bear his own costs of this suit. 61. It is so ordered. Judgment dated, signed and delivered virtually via the Teams Platform this 12th day of August, 2026. HON. DR. IUR NYAGAKA JUDGE JUDGMENT ELCOS E045 OF 2025 28

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From 11:06 AM in the presence of M/s Apondi Advocate for the Applicant No appearance for the Respondent Court Assistant: Arthur JUDGMENT ELCOS E045 OF 2025 29

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