Truphena Kwamboka Matara & another v Registered Trustees Diocese of Kisii (Nyansiongo Parish) & 5 others

the original 4th and 5th Defendants, respectively, passed away and were substituted by Joyce Bosibori Auma. 2. The Plaintiffs averred in the Amended Plaint that they were the registered proprietors of the parcel of land known as LR No. Nyansiongo Settlement Scheme/138 measuring 28.0 hectares (suit property). That upon becoming proprietors, they fenced the land in 1989, that the fence remained in place even as of the date of the Amended Plaint and that they remained in occupation with their families until 11 th August 2020 when the First Defendant moved the Deputy County Commissioner Borabu Sub County seeking to move to the suit property to fence off land parcel numbers Nyansiongo Settlement Scheme/514, 515, 516 and 519. 3. The Plaintiffs further averred that the First to Third Defendants unlawfully interfered with the area index map where the suit property is located and corruptly and fraudulently created land parcel numbers Nyansiongo Settlement Scheme/519, 976, 977, 978 and 979 superimposing them on the suit property with the result that 5.21 hectares would be hived off the suit property. 4. Consequently, the Plaintiffs prayed for judgment against the Defendants for: a) An order of revocation, nullification and/or cancellation of all titles created within and/or superimposed over the Plaintiffs land parcel number Nyansiongo Settlement ELCC No. 80 of 2021 (Nyamira) Page 2 of 25

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Scheme/138, otherwise touted as Nyansiongo Settlement Scheme/519, 976, 978 and 979. b) An order of Declaration that the Defendants conduct of purporting to deal and/or affect the boundaries and limits of parcel number Nyansiongo Settlement Scheme/138 without the Plaintiff’s knowledge or consent of the Land Control Board to be illegal null and void. c) An Order directing the 2nd and 3rd Defendants to forthwith delete all the parcels created and superimposed on or the suit land from the area index map of the suit land. d) An order of permanent injunction restraining the Defendants, their agents or servants from whatsoever manner interfering with the suit land in whatsoever manner. e) In the alternative, an order declaring that title to the suit land has by operation of the principle of adverse possession devolved to the Plaintiffs. f) Cost of the suit and interests. g) Any such further and/or other relief as the Honourable Court may deem fit and expedient to so grant. 5. The First Defendant filed Amended Defence and Counterclaim amended on 12th July 2022 in which it averred that it was the registered proprietor of parcel number Nyansiongo Settlement Scheme/147 measuring approximately 48.7 hectares and ELCC No. 80 of 2021 (Nyamira) Page 3 of 25

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which bordered the suit property as well as parcels number Nyansiongo Settlement Scheme/137 and 139. It denied the Plaintiffs’ allegations of unlawful, corrupt and fraudulent creation of parcels and superimposition on the suit property. It also admitted the jurisdiction of the Court. 6. In its counterclaim, the First Defendant averred that it sought and obtained consent for the subdivision of parcel number Nyansiongo Settlement Scheme/147 into Nyansiongo Settlement Scheme/514 to 520 and that the Plaintiffs, who were its neighbours, had encroached on and taken over part of parcel number Nyansiongo Settlement Scheme/147 into Nyansiongo Settlement Scheme/519 and 520. 7. The First Defendant therefore prayed that the Plaintiffs’ suit be dismissed with costs and that judgment be entered in its favour as follows: a) A permanent injunction against the 1 st and 2nd Plaintiffs, their agents, workers and all others whether or not deriving title from them or any other persons from entering or occupying or trespassing on or claiming title to or in any way buying, claiming rent or selling or charging or mortgaging or allowing others to enter into or erecting any structures on or in any manner whatsoever occupying or dealing Nyansiongo/Settlement subdivisions ELCC No. 80 of 2021 (Nyamira) of the with title Scheme/514 original Page 4 of 25 to - Parcel LR No 520 being of land

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Nyansiongo/Settlement Scheme/147 in any manner inconsistent with the rights or interests of the 1 st defendant. b) An eviction order against the 1 st and 2nd plaintiffs, their agents, workers and all others whether or not deriving title from them from the encroached section on Nyansiongo/Settlement scheme/519 and 520. c) The Officer Commanding Station, Manga Police station to ensure compliance of the orders. d) Costs. 8. The Fourth and Fifth Defendants filed Amended Defence amended on 24th February 2023 in which they denied the Plaintiffs’ averments and stated that they had been in occupation of a portion of parcel number Nyansiongo Settlement Scheme/147 following an exchange before its subdivision. They prayed that the Plaintiffs’ case be dismissed with costs. 9. The Second, Third and Sixth Defendants filed Statement of Defence dated 5th November 2020 through which they denied the Plaintiffs’ allegations and prayed that the suit be dismissed with costs. 10.At the hearing, Truphena Kwamboka Matara (PW1) adopted her witness statement dated 1st September 2020 and produced copies of the documents listed as items number 1, 2, ELCC No. 80 of 2021 (Nyamira) Page 5 of 25

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4, 5, 8 and 9 in Plaintiffs’ List of Documents dated 1 st September 2020 as her exhibits. 11.She stated that she acquired the suit property in 1965, that it was never registered in the name of her late husband and that she and the Second Plaintiff who was her co-wife her became joint registered owners in 1989. She stated that the suit property and the First Defendant’s land were separated by a road and that the suit property neighboured St. Andrews Kagwa School Nyansiongo. 12.She stated that she had seen the County Surveyor Kisii’s report dated 15th February 2022 and added that she did not agree that the report found that there was encroachment. She also stated that there had never been any boundary dispute between the suit property and the First Defendant’s land. She further stated that she did not remember when the suit property was surveyed as she was not present during the survey. 13.She further stated that she was comfortable with the boundary and that she was not aware that the land registrar fixed the boundary pursuant to an order of the Court. She also stated that she did not know Selina Kwamboka Nyansagara (Fourth Defendant), John Ouma Zachariah, (Fifth Defendant) and Agnes Kemunto Agwacha (Sixth Defendant). 14.The Plaintiff’s case was then closed. ELCC No. 80 of 2021 (Nyamira) Page 6 of 25

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15.James Mikaye Mienya, testified as DW1 and stated that he was a Catechist at Nyansiongo Parish. He adopted his witness statement dated 13th October 2025 and produced copies of the documents listed as items number 1 to 4 in the First Defendant’s List of Documents dated 16 th October 2020 as his exhibits. He urged the Court to order eviction of persons on the First Defendant’s parcel number Nyansiongo Settlement Scheme/147 and added that he was present when the Land Registrar and Surveyor went to the ground prior to filing their report. He stated that the Registrar found that six acres of the First Defendant’s land had been invaded by the Plaintiffs and other persons. 16.He equally stated that the First Defendant was the registered owner of parcel number Nyansiongo Settlement Scheme/147 which it later subdivided into parcels number Nyansiongo Settlement Scheme/514 to 520 with the assistance of a surveyor and that the subdivision did not interfere with the boundary of the suit property. 17.DW1 further testified that at some point, the First Defendant reported a boundary dispute between parcel number Nyansiongo Settlement Scheme/147 and the suit property to the Land Registrar who went to the ground and resolved the dispute when he established that the Plaintiffs had encroached into parcel number Nyansiongo Settlement Scheme/147 by six acres. He also stated that he was present when the Land Registrar went to the ground and that the boundaries of parcel ELCC No. 80 of 2021 (Nyamira) Page 7 of 25

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number Nyansiongo Settlement Scheme/147 had never changed since the First Defendant acquired it from the Settlement Fund Trustees in 1965. 18.The Second, Third and Sixth Defendants did not call any witness. Instead, by consent of parties, a report dated 15 th February 2022 which was prepared by the County Land Surveyor Kisii and which was filed in Court on 17 th February 2022, was produced as an exhibit, after which the Second, Third and Sixth Defendants’ case was closed. 19.DW2, Agnes Kemunto Agwacha (the Fifth Defendant) adopted her witness statement which she filed on 14 th December 2021 and produced a copy of mutation form for parcel number Nyansiongo Settlement Scheme/520. She stated that she got land from the First Defendant in exchange for her land near the cathedral. She added that the First Defendant did not give them proper boundaries and that when they went to subdivide the land, they found that it was only two acres which was less. She further stated that they were not involved in the subdivision and that the First Defendant did it and took documents to them. 20.She also stated that she is a daughter in law of Selina Kwamboka Nyansagara and that the exchange was between Selina Kwamboka Nyansagara and the First Defendant. That her land was number Nyansiongo Settlement Scheme/978 which is a subdivision of number Nyansiongo Settlement ELCC No. 80 of 2021 (Nyamira) Page 8 of 25

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Scheme/520. That the subdivision of Nyansiongo Settlement Scheme/520 was done by Selina Kwamboka Nyansagara in her presence. She added that when they brought a surveyor, they discovered that the land given by the First Defendant was not enough. She further testified that that she was not in occupation or use of Nyansiongo Settlement Scheme/978 as of the date of her testimony, that some two people were occupying it and that there was a pending court case which she filed against them. 21.The Fourth and Fifth Defendants’ case was then closed. Thereafter, parties sought and were granted time to file written submissions. The Plaintiffs filed submissions dated 23 rd March 2026, the First Defendant filed submissions dated 24 th July 2026, while the Fourth and Fifth Defendants filed submissions dated 12th May 2026. The Second, Third and Sixth Defendants did not file any submissions. Instead, they relied entirely on the evidence on record. 22.It was submitted on behalf of the Plaintiffs that there being no mutation forms annexed the report by the County Surveyor dated 15th February 2022, the Land Registrar ought to have considered the mutation forms that were used to subdivide Nyansiongo/settlement scheme/147 and 520 as they would have shown the disparity in the actual measurements of the parcels of land on the ground and the measurements on the registry index map. ELCC No. 80 of 2021 (Nyamira) Page 9 of 25

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23.It was further submitted that said report noted encroachment into other parcels of land being parcels number 139 and 225 leading to the Plaintiffs’ claim of superimposed titles over the suit property. They thus contended that the report was incomplete and insufficient to draw a conclusion that would settle this matter. Reliance was placed on the case of Dismas Nyantika Miroro & Ano vs Joyce Mokeira & Ano ELC case No. 135 of 2014 Kisii in support of those arguments. 24.The Plaintiffs also relied on the case of Wambugu -vNjuguna (1983) KLR 173 and submitted that they had met the requirements of adverse possession since they had been in occupation of the suit property with quiet possession for 55 years, since 1965. Additionally, they relied on Mbira v Gachuhi (2002) 1 EALR 137, Kimani Ruchire vs Swift Rutherford & Co. Ltd. [1980] KLR 10 and Kipkoech Arap Langat vs Kipngeno Arap Labos Kericho HCCC No. 124 of 2004 (OS) and contended that they had had exclusive possession until August 2020 when the present dispute arose. In conclusion, they submitted that they had established their case and urged the Court to grant them the reliefs they had sought. 25.For the First Defendant, placing reliance on Section 18 (2) of the Land Registration Act as well as the cases of George Mbugua Kirori v Peter Nyaga Kairu [2018] eKLR and Ranching (D.A) Company Limited v Abdi Starr Haji ELC No. 250 of 2021, it was submitted that as framed and ELCC No. 80 of 2021 (Nyamira) Page 10 of 25

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considering the evidence on record, this suit is a boundary dispute and that the Court lacks jurisdiction to hear and determine it. 26.It was further submitted that the First Defendant’s registered proprietorship of parcel number Scheme/147 is protected Nyansiongo Settlement Article of under 40 the Constitution and Section 26 of the Land Registration Act and that the Plaintiffs had failed to prove their allegations of fraud and illegality. The case of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR was cited in support of those arguments. 27.Regarding its counterclaim, the First Defendant submitted that its case that the plaintiffs had encroached on its parcel number Nyansiongo Settlement Scheme/147 as well as the resultant subdivisions had been corroborated by the report on record. It further contended that parcel number Nyansiongo Settlement Scheme/147 was first registered on 21 st May 1982, thus predating the suit property which was registered in 1989. Consequently, it submitted that it had established its counterclaim and was entitled to the reliefs sought therein. 28.Regarding the Plaintiffs’ claim for declaration of title by adverse possession, the First Defendant relied on the case of Mwalimu & 6 others v Halal & another [2025] KECA 1186 (KLR) and submitted that such a claim cannot coexist ELCC No. 80 of 2021 (Nyamira) Page 11 of 25

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with a claim that the title is fraudulent, illegal, null and void. Consequently, it urged the Court to dismiss the said claim. 29.On the part of the Fourth and Fifth Defendants, it was submitted on their behalf that the Land Registrar acted beyond the scope of the reference and his jurisdiction when he purported to rectify the titles Nyansiongo Settlement Scheme/519, 976, 977, 978 and 979 which are resultant subdivisions of parcels of Nyansiongo Settlement Scheme/147 and 520 with the result that he moved the boundary and set up a new one. 30.Relying on Sections 18 and 19 of the Land Registration Act as well as the cases of Daniel Lekirere Ole Kosencha v Julius Lepap Kosencha & Anor Nakuru Civil Appeal No. 237 of 2018 and Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, it was submitted that Courts do not have jurisdiction in boundary disputes where the boundary had not been fixed. 31.On whether parcels number Nyansiongo Settlement Scheme/519, 976, 978 and 979 had been superimposed on the suit property, it was submitted that the registrar’s report confirmed that the ground usage of the suit property by the Plaintiffs encroached Nyansiongo/Settlement into Scheme/147 parcel by an number area of approximately 1.116 hectares. That if the Plaintiffs were ELCC No. 80 of 2021 (Nyamira) Page 12 of 25

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aggrieved by the report, they should have sought review under Section 86 of the Land Registration Act. 32.On the Plaintiffs’ claim for declaration of title by adverse possession, it was submitted on behalf of the Fourth and Fifth Defendants that such a claim could only arise where wrongful entry, followed by dispossession and discontinuance of possession of the valid owner coupled with acts committed or undertaken by the adverse possessor that were inconsistent with the purpose for which the valid owner intended to use the land. It was further submitted that a boundary dispute and a claim for declaration of title by adverse possession were both inconsistent and mutually exclusive. In conclusion, it was submitted that the Plaintiffs had failed to establish their case. Consequently, the Fourth and Fifth Defendants urged the Court to dismiss it with costs. 33.I have carefully considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether the Court has jurisdiction, what reliefs should issue and who bears costs? 34.Jurisdiction is everything. Without it, the proceedings come to a certain end and the court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR. ELCC No. 80 of 2021 (Nyamira) Page 13 of 25

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35.It hardly needs emphasising that proceedings conducted without jurisdiction are not only futile but are a nullity and an imprudent use of judicial time. See National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR). 36.The First, Fourth and Fifth Defendants have contended that what the Plaintiffs have placed before this Court for determination is a boundary dispute and that consequently, this Court lacks jurisdiction. The law on the issue is encapsulated in Section 18 of the Land Registration Act which provides as follows: (1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel. (2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section. (3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the ELCC No. 80 of 2021 (Nyamira) Page 14 of 25

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parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299). 37.The Court of Appeal held in Azzuri Limited v Pink Properties Limited [2018] eKLR as follows regarding the application of the foregoing provision: This means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land disputes Registrar pertaining to for resolution; lands with while fixed boundaries may be investigated and possibly resolved simply through a surveyor. … In this case, reference of the dispute to the Environment and Labour Court at first instance was proscribed by statute and on that account alone, the appellant’s case was a nonstarter. Although this matter would have rested on this point of jurisdiction, we will deal with the issue of evidence ELCC No. 80 of 2021 (Nyamira) purely because Page 15 of 25 counsel made

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submissions on the same and there was a determination by the Judge. 38.While the provisions at Section 18 (2) of the Land Registration Act and their effect are not in dispute, what must first be determined is whether the case pleaded by the Plaintiffs is a boundary dispute. If it is not, then it is unaffected by the provision. If, however, it is a boundary dispute, we will have to determine whether the properties involved fall within a general boundary area, in which case the Court’s jurisdiction would be ousted where the boundary has not been fixed. 39.The Plaintiffs’ case is confined within the four walls of the Further Amended Plaint amended on 7 th July 2025. Among the averments made by the Plaintiffs therein are that the First to Third Defendants unlawfully interfered with the area index map where the suit property is located and corruptly and fraudulently created land Settlement Scheme/519, parcel 976, 977, numbers Nyansiongo 978 979 and by superimposing them on the suit property with the result that 5.21 hectares would be hived off the suit property. 40.Prayers (a) and (c) of the Further Amended Plaint are for cancellation of all titles while prayer (e) is for declaration of title by adverse possession. All those are manifestly claims for land as opposed to a boundary dispute. The mere mention of the word “boundary” does not render a claim a boundary dispute. Focus should always be on the litigants’ main ELCC No. 80 of 2021 (Nyamira) Page 16 of 25

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pleading, in this case the Further Amended Plaint. That is where the litigants’ “wish list” or goal in the litigation is to be gleaned. 41.In view of the foregoing, I am satisfied that this is not a boundary dispute and that this Court has jurisdiction to hear and determine this case. It is also important to note that there are on record two reports jointly prepared by the County Land Registrar Kisii and County Surveyor Kisii, dated 4 th March 2021 and 15th February 2022. Both reports were filed pursuant to orders made by the Court and addressed to the issue of proper location of the parcels in dispute. 42.The Plaintiffs have sought “revocation, nullification and/or cancellation” of the titles in respect of parcels number Nyansiongo Settlement Scheme/519, 976, 978 and 979. Registered title to land is a matter that is heavily fortified in law. That position is hardly surprising. Land is property, and in our national context, a much valued asset. 43.A registered proprietor of land’s right to property is guaranteed primarily through Article 40 of the Constitution as well as Section 24 of the Land Registration Act which provides as follows: Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights ELCC No. 80 of 2021 (Nyamira) Page 17 of 25

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and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 44.Further entrenchment of the registered proprietor’s rights is obtained through Section 26 of the Land Registration Act which obligates the Court to accept his certificate of title as prima facie evidence of proprietorship unless the provisos under Section 26 (1) (a) or (b) are established. Thus, the grounds on which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party and where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. 45.There is no dispute that the Plaintiffs are joint registered proprietors of the suit property while the First Defendant was the registered proprietor of parcel number Nyansiongo Settlement Scheme/147. From the certified copy of the register in respect of the suit property which was produced as an exhibit by the Plaintiffs, they were registered as joint ELCC No. 80 of 2021 (Nyamira) Page 18 of 25

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proprietors on 22nd December 1989 and title deed issued to them on the same date. 46.No copy of the register or even certificate of search in respect of parcel number Nyansiongo Settlement Scheme/147 was produced. Nevertheless, parties were in agreement that the First Defendant was the registered proprietor of the said parcel. DW1 testified that the First Defendant subdivided the parcel into parcels number Nyansiongo Settlement Scheme/514 to 520. Certified copies of registers in respect of the subdivisions were produced and upon their perusal, I note that “Diocese of Kisii” was registered as proprietor in respect of all of them on 7th June 1995. Further, the register in respect of Nyansiongo Settlement Scheme/520 was closed on 25 th November 2002 upon being subdivided into Nyansiongo Settlement Scheme/976 to 979. 47.The reasons that the Plaintiffs have advanced for seeking cancellation are that the titles in respect of parcels number Nyansiongo Settlement Scheme/519, 976, 978 and 979 were corruptly and fraudulently created and that they were superimposed on the suit property. In view of the classification under Section 26 (1) (a) or (b) of the Act, the Plaintiffs have opted to forge their assault on the titles on the strength of the grounds of fraud, illegality and a corrupt scheme. 48.It is trite that a party alleging fraud must plead it, particularise it, and strictly prove it to standard higher than the usual one in ELCC No. 80 of 2021 (Nyamira) Page 19 of 25

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civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. See Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR. 49.A perusal of the Further Amended Plaint reveals that no particulars of fraud were pleaded therein. Further, the evidence tendered by the Plaintiff fell far short of meeting the requirement of strict proof it to standard higher than proof on a balance of probabilities. I find that the Plaintiffs failed to establish fraud. 50.The Plaintiffs’ allegations of illegality and a corrupt scheme are built exclusively on the theory that parcels number Nyansiongo Settlement Scheme/519, 976, 978 and 979 were superimposed on the suit property with the result that 5.21 hectares of the suit property were lost. The Plaintiffs did not offer any evidence to support their claim of superimposition. They neither produced a survey drawing nor called a survey to offer any opinion evidence to support their claim. 51.As noted earlier, there is on record a report dated 15 th February 2022 which was prepared jointly by the County Surveyor Kisii and the County Land Registrar Kisii, which was ELCC No. 80 of 2021 (Nyamira) Page 20 of 25

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filed in Court on 17th February 2022. The report is detailed and quite helpful. 52.The findings in the report do not support the Plaintiffs’ claim of superimposition. Instead, the findings confirm the fact of subdivision of Nyansiongo Settlement Scheme/147 and Nyansiongo Settlement Scheme/520 as narrated above and explicitly state that all the resulting parcel numbers fall within the original Nyansiongo Settlement Scheme/147. 53.The findings further state that the Plaintiffs have encroached into Nyansiongo Settlement Scheme/147 by an area measuring approximately 1.116 hectares. Annexed to the report are detailed survey maps which illustrate the findings. 54.There are also other encroachments between Nyansiongo Settlement Scheme/147, Nyansiongo Settlement Scheme/139 and Nyansiongo Settlement Scheme/225. It must however be pointed out that the proprietors of Nyansiongo Settlement Scheme/139 and Nyansiongo Settlement Scheme/225 were not made parties to this suit. Consequently, any allegations of encroachment by or against them cannot be addressed in their absence. 55.In the absence of proof of superimposition, the Plaintiffs’ allegations of illegality and a corrupt scheme are unsupported and have no leg to stand on. On the contrary, survey evidence on record is explicit that far from being victims, the Plaintiffs ELCC No. 80 of 2021 (Nyamira) Page 21 of 25

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are purveyors of encroachment, as against the First Defendant. 56.The Plaintiffs also sought an order “declaring that title to the suit land has by operation of the principle of adverse possession devolved to the Plaintiffs.” The Plaintiffs defined “suit land” at paragraph 8 of their Further Amended Plaint to mean parcel number Nyansiongo Settlement Scheme/138. 57.The law relating to adverse possession is found at Sections 7, 13, 17 and 38 of the Limitations of Actions Act. The party claiming adverse possession must assert hostile title in denial of the title of the registered proprietor. The process must start with a wrongful dispossession of the rightful owner and the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. The party who claims adverse possession must demonstrate the date she came into possession, the nature of her possession, whether the fact of her possession was known to the registered proprietor and that the possession was open and undisturbed for the requisite 12 years. See Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR. 58.The Plaintiffs are the registered proprietors of parcel number Nyansiongo Settlement ELCC No. 80 of 2021 (Nyamira) Scheme/138 Page 22 of 25 (suit property). A

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registered proprietor cannot obtain title to her own land through adverse possession. She is already the proprietor. She cannot assert hostile title against herself or wrongfully dispossess herself. 59.In view of the foregoing, I find that the Plaintiffs have failed to prove their case. The reliefs they seek are not available to them. 60.In its counterclaim, the First Defendant sought judgment against the Plaintiffs for a permanent injunction to restraint them from dealing with subdivisions of the original Nyansiongo/Settlement Scheme/147 and their eviction from encroached section of Nyansiongo/Settlement scheme/519 and 520. As stated earlier, the report confirmed encroachment by the Plaintiffs into the original Nyansiongo/Settlement Scheme/147 by an area measuring approximately 1.116 hectares. The maps G and M annexed to the report place the encroached within Nyansiongo/Settlement scheme/519 and 520. 61.I am satisfied that the First Defendant has proven its case. I am however not persuaded to make an order involving the police in enforcement of a civil order. The order should be enforced through the ordinary procedures for enforcement or decrees and orders. Needless to state, the police can always come in pursuant to their mandate, if there is a threat to security and peace. ELCC No. 80 of 2021 (Nyamira) Page 23 of 25

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62.Arising from the foregoing discourse, I make the following orders: a) The Plaintiffs’ case is dismissed. b) Judgment is entered for the First Defendant and against the Plaintiffs jointly and severally as follows: i. A permanent injunction is hereby issued restraining the Plaintiffs, their agents and servants from entering or occupying or trespassing on or claiming title to or in any way buying, claiming rent or selling or charging or mortgaging or allowing others to enter into or erecting any structures on or in any manner whatsoever occupying or dealing with title to LR No Nyansiongo/Settlement Scheme/514 to 520 being subdivisions of the original Parcel of land Nyansiongo/Settlement Scheme/147 in any manner inconsistent with the rights or interests of the First Defendant. ii. The Plaintiffs, their agents and workers to vacate from the encroached section of Nyansiongo/Settlement scheme/519 and 520 within delivery 60 of (sixty) this days from judgment. In the date of default, an eviction order shall issue against them. ELCC No. 80 of 2021 (Nyamira) Page 24 of 25

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c) The Plaintiffs shall bear costs of the suit and the counterclaim. Dated, signed, and delivered at Nyamira, this 21 st day of September 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Ondande for the Plaintiff Mr Anyoka for the 1st Defendant Mr Ndiritu for the 2nd, 3rd and 6th Defendants Ms Nyaenya for the 4th and 5th Defendants Court Assistant: B Kerubo ELCC No. 80 of 2021 (Nyamira) Page 25 of 25

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