Registered Trustees of the Archdiocese of Kisumu (Suing on behalf of St. Maria Goretti Catholic Church) v Peter Ondoo

b) A declaration that the defendant’s title to the suit property has been extinguished by virtue of the plaintiff’s adverse possession and that the defendant holds the property in trust for the plaintiff; c) An order that the defendant’s title to the suit property be cancelled and the plaintiff registered as the owner of the property in place of the defendant; and d) The costs of the Originating Summons. The application is premised on the grounds set out in the supporting affidavit sworn by Rev. Fr. Kevin Ndago, on 25 th February 2025. He has averred that St. Maria Goretti Catholic Church (the church) is situated on the suit property; that the suit property was acquired from Charles Owiti in 1986 by Fr. Burgman of Mill Hill Missionaries to use for the rehabilitation of street children through giving them religious instruction and practical skills which could get them out of the streets; that the church had occupied the suit property from 1986 when Fr. Burgman acquired it; that the defendant was registered as the proprietor of the property on 19th March 1990 without the knowledge of the church; that the church has a chapel on the suit property where Catholics ELC (OS) E001 OF 2025 JUDGMENT Page 2

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around Nyalenda worship; that in addition to the chapel, the plaintiff has also constructed on the suit property structures used as classes for training; that the church’ possession has been continuous and uninterrupted since 1986; that the defendant has not interfered with or interrupted the church’s possession of the suit property; that more than 12 years had lapsed since the church took possession and occupied the property; and that the church had acquired the property by adverse possession. The plaintiff annexed to the affidavit in support of the application a copy of certificate of official search dated 14 th September 2023 and a copy of a letter dated 20 th September 2024 from the Office of the Chief West Kolwa Location. The defendant was served with the Originating Summons but did not enter appearance. The suit was fixed for formal proof on 4 th November 2025, when Rev. Fr. Kevin Ndago (PW1) gave evidence on behalf of the plaintiff. In his evidence, PW1 adopted his witness statement, filed with the Originating Summons on 26th February 2025, as part of his evidence in chief. He produced copies of a certificate of official search dated 14 th September 2023, a letter dated 20th September 2024 from the Chief West Kolowa Location, ELC (OS) E001 OF 2025 JUDGMENT Page 3

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an extract of the register for the suit property certified on 21 st November 2024 and a photograph of the church building on the suit property as exhibits. In his brief oral testimony, PW1 reiterated the contents of his affidavit in support of the Originating Summons and witness statement. He stated that the church built a chapel on the suit property, whose photograph he produced in evidence, in 1987, after purchasing the suit property in 1986. He stated that the church had occupied the suit property since 1986 and that the defendant never interrupted its occupation. He stated that the church had occupied the property for 39 years and urged the court to grant the church title to the property so that it could develop it further. After the close of evidence, the plaintiff’s advocate relied entirely on the evidence on record and urged the court to allow the Originating Summons as prayed. I have considered the Originating Summons together with the evidence that was tendered by the plaintiff in support thereof. In Salim v. Boyd and Another [1971] E.A 550, it was held that for a claimant of land by adverse possession to succeed, he must prove that he has been ELC (OS) E001 OF 2025 JUDGMENT Page 4

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in open, continuous and uninterrupted occupation of the land for a period of 12 years or more. In Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another [1977] KLR 10 Kneller J. stated as follows at page 16: “The Plaintiffs have to prove that they have used this land which they claim as of right, necvi, nec clam, nec plecario (no force, no secrecy, no evasion)…The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration.” As I have stated earlier in the judgment, the defendant did not enter appearance. The suit was therefore undefended. The evidence the plaintiff tendered as to when and how the church entered the suit property was not controverted. The same applies to the evidence that the plaintiff led regarding the use of the suit property. The plaintiff told the court that the church entered and occupied the suit property in 1986 after the same was purchased by Fr. Burgman, a priest of the Mill Hill Missionaries. The plaintiff stated that the church was still in occupation of the property and that its occupation had been open, peaceful, and uninterrupted. ELC (OS) E001 OF 2025 JUDGMENT Page 5

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Section 7 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya provides that an action to recover land cannot be brought after 12 years from the date the right of action accrued. Section 17 of the same Act provides that at the expiration of the said period of 12 years, the title of the person who was entitled to bring an action in respect of the land in question is extinguished. It is over 39 years since the church took possession of the suit property. The defendant has brought no action against them to recover the property. I agree with the plaintiff that the defendant's title to the suit property has been extinguished by operation of law and that the church has acquired the property by adverse possession. Section 38 of the Limitation of Actions Act gives power to the court to order that the person who has acquired land by adverse possession be registered as the owner of the land in place of the person whose interest in the land has been extinguished. Due to the foregoing, the plaintiff has made a case for the grant of prayers (a), (b), (c), (d), (e), (f) and (g) in the Originating Summons dated 25th February 2025. On costs, each party shall ELC (OS) E001 OF 2025 JUDGMENT Page 6

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bear its own costs of the suit, as the suit was not defended. In conclusion, I hereby enter judgment for the plaintiff against the defendant as follows: 1. I declare that the title held by the defendant, Peter Ondoo, in all that parcel of land known as Title No. Kisumu/Nyalenda “A”/659 has been extinguished by operation of law. 2. I declare that St. Maria Goretti Catholic Church has acquired Title No. Kisumu/Nyalenda “A”/659 by adverse possession. 3. The defendant shall transfer to the plaintiff Title No. Kisumu/Nyalenda “A”/659 within thirty (30) days from the date hereof, failure to which the Deputy Registrar of this court shall be at liberty to execute all documents necessary to transfer the said property to the plaintiff. 4. The plaintiff shall meet all the expenses and costs associated with the transfer of Title No. Kisumu/Nyalenda “A”/659 into its name. 5. Each party shall bear its own costs of the suit. Written and signed at Mombasa by ELC (OS) E001 OF 2025 JUDGMENT Page 7

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S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: N/A for the Plaintiff N/A for the Defendant Joanne Omondi -Court Assistant ELC (OS) E001 OF 2025 JUDGMENT Page 8

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