Kennedy Owiti Ochieng v Tom Mboya Omolo & another; Land Registrar, Bondo (Interested Party)

Laws of Kenya and Order 37 Rule 7 of the Civil Procedure Rules, seeking the following orders: (1) THAT the Plaintiff has for a period in excess of twelve (12) years been in adverse possession of a half portion of land parcel No. UYOMA/NAYA/2726 measuring approximately 0.5 Ha, situate in Rarieda Sub-County, Siaya County, within the Republic of Kenya and consequently the Deceased's title thereto in respect of the half share of the said parcel of land has been extinguished by virtue of Section 7 of the Limitation of Actions Act, Cap 22 of Laws of Kenya. (2) THAT the Plaintiff be registered as the proprietor of the said half portion of land forming part of Land reference number; UYOMA/NAYA/2726, in place of the deceased Daniel Omolo, who presently is the title holder of a half share of the same. (3) THAT the interested party to initiate the transfer of half portion of the suit parcel known as Land Reference number; UYOMA/NAYA/2726 to the Plaintiff forthwith and the Defendant signing, executing or endorsing necessary documents of the transfer, the deputy registrar of this Honourable court does undertake signing, execution or endorsement of the necessary transfer documents. (4) THAT the Defendants be prohibited from evicting and/or interfering in any other way with the suit land. ELC LOS E003 OF 2025 JUDGMENTS 2

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(5) THAT the costs be in the cause. 2 The Plaintiff swore a Supporting Affidavit on 15 th January 2025 in support of the Originating Summons, in which he deponed that he has been living on the half portion of land reference number UYOMA/NAYA/2726, enjoying peaceful, quiet and uninterrupted possession since the year 1982, his whole family including his late father and mother having been in possession of the suit property for over forty-two (42) years. 3 He deponed that he has occupied the half portion of the suit property to its full extent and dimension for the entire period of his possession and that he accordingly filed the suit seeking to be declared the legal owner of the half portion of land parcel No. UYOMA/NAYA/2726 by way of adverse possession. 4 The Plaintiff further deponed that he was apprehensive that the Defendants intended to defeat his case by issuing an illegal enforcement notice of eviction and caution and further, that they would evict him before the full hearing and determination of his cause with the express intention of defeating it. 5 He deponed that he has maintained the rental structures constructed on the suit property for over twelve years and ELC LOS E003 OF 2025 JUDGMENTS 3

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that he has equally buried family members on the suit property, to which he is emotionally attached. 6 He deponed that he was advised by his advocates on record, which advice he verily believed to be true that he had a strong and viable cause of adverse possession against the Defendants, having enjoyed quiet, peaceful and uninterrupted possession of the half portion of the suit property for a period in excess of the twelve years provided for under the law and that it was mere and just that the orders sought be granted. The 1st and 2nd Defendants' Case 7 The 1st and 2nd Defendants entered appearance through the firm of Maxwell O. Ogonda & Associates Advocates. The 1 st Defendant, Tom Mboya Omolo, thereafter filed a Replying Affidavit sworn on 24th March 2025, on his own behalf and that of the 2nd Defendant. 8 The 1st Defendant deponed that he and the 2 nd Defendant are sons of Daniel Omolo alias Daniel Machuria Omolo, who is now deceased. He deponed that the Plaintiff is a stranger to their family and to the estate of their late father and that the institution of this suit against the estate of his father amounts to intermeddling, a criminal act for which the Plaintiff could be sued. 9 The 1st Defendant deponed that their family is known to that of the late Owiti Okoth, the Plaintiff's father, because ELC LOS E003 OF 2025 JUDGMENTS 4

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sometime in the 1970s Owiti Okoth and his wife, who were fish traders from Kisumu, approached their father and requested to be allowed to occupy a semi-permanent structure which his father had built on the suit property for purposes of selling fish and that their father allowed them to occupy the same on a temporary basis. He deponed that the couple would sell fish from the structure on given days and thereafter return to Kisumu, only to come back after some time and that the possession, if any, was therefore permissive and not continuous, being in the nature of a landlord-tenant relationship. 10 The 1st Defendant further deponed that their father built other temporary structures on the suit land due to demand which were occupied by several other persons, including one Theresa Awuor, the Plaintiff's witness, well known to their family and annexed photographs of the said structures marked "TMO-1". He deponed that if indeed the Plaintiff lived on the suit property, such stay was as a result of the consent or licence granted to his father by their father, or as a tenant and could not qualify him to claim title by adverse possession. 11 The 1st Defendant denied that the Plaintiff had buried any family member on the suit property, terming the allegation a blatant lie and indicated an intention to seek an order for the court to visit the suit property to confirm the position. He deponed that the Plaintiff's claim was misplaced and did not ELC LOS E003 OF 2025 JUDGMENTS 5

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merit an order of adverse possession and stated that their mother was still alive and would testify in the matter. 12 The Land Registrar, Bondo was enjoined as the Interested Party and the Hon. Attorney General entered appearance on its behalf by a Memorandum of Appearance dated 23 rd January 2025. However, they elected not to participate noting the claim was one for adverse possession. The Plaintiff's Further Affidavit 13 In response to the 1st Defendant's Replying Affidavit, the Plaintiff swore a Further Affidavit on 25 th June 2025, in which he deponed that it was not in dispute that the Defendants are sons of the late Daniel Omolo and co-owners of the parcel No. UYOMA/NAYA/2726. 14 He deponed that the deceased Daniel Omolo was a fisherman and a great friend to his father, the late Owiti Okoth, with whom he worked closely and that his father migrated from Dunga in Kisumu in the 1970s and permanently settled in Uyoma, whereupon he approached the late Daniel Omolo, who agreed to sell to him the half portion of the suit property that he owned and that upon payment of the full purchase price, his father took possession of the same. 15 The Plaintiff further deponed that, contrary to the Defendants' allegations at paragraphs 6, 7 and 8 of the Replying Affidavit, he knew that at the time his father acquired the suit property ELC LOS E003 OF 2025 JUDGMENTS 6

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the land was bare but he later erected, thirty (30) rooms for rental which he occupied with his family and rented out the remainder. That the deceased Daniel Omolo never built any structure on the suit property as alleged. 16 He deponed that the late Daniel Omolo, having disposed of the half portion of the suit property to his father, granted him immediate possession and peaceful utilization thereof and that upon the demise of Daniel Omolo sometime in 1977 and of his father in 1983, no subdivision or transfer of the half portion was ever conducted. He deponed that he and the family members of the late Owiti Okoth had continued living on the half portion, residing in a few rooms and renting out the remainder to tenants, that he personally collects the monthly rent from the tenants at a rate of Kshs. 400/- and conducts any repairs required to keep the rental structures habitable and that since 1982 he has enjoyed peaceful and uninterrupted occupation of the suit parcel, openly and to the exclusion of the Defendants. HEARING AND EVIDENCE 17 On 1st July 2025, directions were taken converting the Originating Summons into a Plaint and the Replying Affidavits filed by the Defendants as Defence for purposes of hearing viva voce. The Plaintiff's Case ELC LOS E003 OF 2025 JUDGMENTS 7

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18 PW1, was Kennedy Owiti Ochieng, the Plaintiff a resident of Luanda Kotieno. and knows both Defendants, who are his neighbours. He adopted his witness statement dated 15 th January 2025 as his evidence-in-chief and produced the documents in his List of Documents dated 15 th January 2025 as PEX 1 and 2, and those in his Further List of Documents dated 24th February 2025 as PEX 3, 4 and 5. 19 On cross-examination by counsel for the Defendants, PW1 testified that when he stated in paragraph 3 of the witness statement that his father had acquired the land "in a friendly manner", he meant that his father bought the land and paid for it in instalments, information which he obtained from his parents while they were alive, though he was not shown any sale agreement and did not know the purchase price. 20 He testified that his father was buried at Dunga, Kisumu, this being where the family's ancestral land was situated, the land at Kotieno having been for business. He stated he was too young to know of any temporary permission granted to his father. He maintained that his father bought the land from the late Daniel Omolo and denied that his father had been merely permitted to stay there on account of their friendship. 21 PW1 confirmed that the family of the late Daniel Omolo had asked him to vacate the suit land. This and the fact that his father acquired the land prompted him to move to court. He ELC LOS E003 OF 2025 JUDGMENTS 8

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testified that photographs of a grave in his further list of documents depicted the grave of a relative on the suit property, though he had no documentation proving the identity of the person buried therein and that his father, who had five wives, was buried together with his wives at Dunga. 22 On re-examination, PW1 testified that the Defendants had asked him to vacate the suit property in the year 2024. 23 PW2, Simeon Nyaji Ousa, introduced himself as a resident of Rarieda Luanda Kotieno a fisherman/businessman and the Plaintiff's uncle and a relative of the Defendants. 24 He adopted his witness statement dated 15 th January 2025 as his evidence-in-chief, in which he stated among other things, that he and the late Daniel Omolo Machuria were village mates who worshipped at the same church, that the late Daniel Omolo Machuria owned a half share of the suit property while the other half share was owned by the late Enoka Oloo, a son of the late Daniel Omolo Machuria and elder brother to the Defendants. That the Plaintiff's father migrated from Dunga, Kisumu and settled on the suit portion which he had acquired from the late Daniel Omolo. That the Plaintiff's father built rental houses of about thirty (30) rooms on the portion and that the Plaintiff has since the demise of his parents continued to manage the rental houses and reside on the suit land with his family in open, continuous, quiet, peaceful and uninterrupted possession for ELC LOS E003 OF 2025 JUDGMENTS 9

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more than twelve years, with the knowledge of the beneficiaries of the estate of the late Daniel Omolo. 25 On cross-examination, PW2, then aged 60 years, testified that he was about 12 years old and schooling at Naya Primary School, about a kilometer and a half from the suit property, around the time the Plaintiff's father is said to have migrated there in or around 1977. He testified that the information on the acquisition of the land came from having visited his sister, one of the Plaintiff's father's co-wives, who lived on the land but that he neither witnessed nor saw any sale agreement. He confirmed that his sister had four cowives as at 1977, all now deceased and buried at Dunga and that the Plaintiff's father was a fisherman and businessman with many structures on the suit property, though he could not say on what basis he occupied it and was evasive when pressed on whether he had occupied the property as a tenant. 26 He confirmed that the parcel is registered in the names of the late Daniel Omolo and the late Enoka Oloo, but stated that he did not know on which side of the two registered proprietors his sister's family's structures stood. He confirmed that the Defendants had indeed wanted to evict the Plaintiff though he did not know why given that the Plaintiff's family had lived there for over twenty years. ELC LOS E003 OF 2025 JUDGMENTS 10

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27 On re-examination, PW2 clarified that the late Owiti Okoth and his family lived on the suit land as owners of the structures thereon and not as tenants though he could not himself state how the Plaintiff's father came to acquire the land save that he had seen them putting up the structures. 28 PW3, Theresa Awor, stated she was 72-year-old and a charcoal dealer. She adopted her statement dated 24 th February 2025 as her evidence-in-chief, wherein she stated, she has lived in Luanda Kotieno since 1980 where she was formerly a tenant in the rental houses constructed by the Plaintiff's father on the suit land. That she has since purchased her own neighboring parcel and constructed her own structure. According to the witness the parcel was owned by the late Daniel Omolo and the late Enoka Oloo in equal shares. That the portion on which the rental houses stand belong to the late Daniel Omolo, that upon coming to reside on the suit land in 1980 she found the Plaintiff's father already residing there with his four wives and children while construction of the rental houses was ongoing. That following the demise of the Plaintiff's parents the Plaintiff took over the maintenance and management of the rental houses in 2007 and later in 2010 constructed three additional rooms which he let out to tenants and that the area chief is aware of the Plaintiff's presence on the suit land. ELC LOS E003 OF 2025 JUDGMENTS 11

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29 PW3 added that the Plaintiff has since the demise of his parents, been in open, continuous, quiet, peaceful and uninterrupted possession of the suit land for more than twelve years to the exclusion of others and with the knowledge of the beneficiaries of the estate of the late Daniel Omolo. 30 On cross-examination, PW3 confirmed that the Plaintiff's father was called Owiti Okoth. That she came to know of the ownership of parcel No. 2726 because she resided on the portion belonging to the late Owiti Okoth's family. She testified that the late Daniel Omolo resided on his own portion at Luanda Kotieno within walking distance of her home and that she regarded the two families as neighbours. However, she did not know how the Plaintiff's father had come to occupy the suit land, having only arrived after he had already established his home there. 31 There being no re-examination and the Plaintiff's case was closed. The 1st and 2nd Defendants' Case 32 DW1, Tom Mboya Omolo, the 1st Defendant, told the court he was a business man his original home is at Uyoma, Naya Sub-location, South Uyoma Location. He adopted his Replying Affidavit sworn on 24th March 2025 and his witness statement of even date as his evidence-in-chief. ELC LOS E003 OF 2025 JUDGMENTS 12

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33 On cross-examination, DW1 confirmed that he and the 2 nd Defendant are sons of the late Daniel Omolo, who owned a half share of the suit property, the other half being owned by his brother, the late Enoka Oloo. He testified that their father died in 1977 and never sold the half share to Owiti Okoth, but conceded that Owiti Okoth had been permitted by their father to live on parcel No. 2726 from 1977, having approached him on account of their friendship and that by that time there were already two structures on the land, constructed by their father around 1974/1975. 34 He confirmed that Owiti Okoth had thereafter lived on the land with his family and that the two families were well known to each other, that his father's family was aware of the presence of Owiti Okoth's family on the land and that the Plaintiff had resided in the structures on the suit property. 35 On re-examination, DW1 confirmed, in substance, that apart from the Plaintiff who still resides on the property he doesn’t know any other members of his family who live on the land. 36 DW2, Fibi Awino Omolo, introduced herself as the mother of the Defendants and widow of the late Daniel Omolo residing in Luanda Kotieno. She adopted her witness statement dated 24th April 2025 as her evidence-in-chief. 37 On cross-examination, DW2 testified that she got married to the late Daniel Omolo in 1963, that her husband did not sell ELC LOS E003 OF 2025 JUDGMENTS 13

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the land to Owiti Okoth, and that she and her co-wives knew Owiti Okoth, who approached them after her husband's death seeking permission to use the land to dry his fish. She could not recall the exact year in which Owiti Okoth arrived but confirmed that the late Daniel Omolo died in 1977 and that the arrangement with Owiti Okoth was reached around that same year. The same were verbal. 38 She testified that Owiti lived in the structures built by Daniel Omolo though she did not closely monitor who occupied them thereafter. She confirmed that of the original occupants only a few remained and that the Plaintiff, Kennedy, presently looks after the structures. 39 On re-examination, DW2 maintained her position that the structures on the suit land were built by Owiti Okoth and that the plaintiff’s family never purchased the land. 40 With the above the Defendants' case was marked as closed. SUBMISSIONS 41 The Court directed the parties to file written submissions. Only the Plaintiff complied. The Plaintiff's Submissions 42 Counsel for the Plaintiff filed written submissions dated 27 th March 2026, framing the issues for the court’s determination as, firstly, whether the Plaintiff has acquired by way of ELC LOS E003 OF 2025 JUDGMENTS 14

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adverse possession the half portion of parcel No. UYOMA/NAYA/2726 and secondly, who should bear the costs of the suit. 43 It was submitted that the Plaintiff has for a period in excess of twelve years, possessed the half portion of the suit property having lived thereon since 1982 when he was born and resided in the rental structures erected on the suit land thus knowing the same to be his home, having possessed the same openly, uninterruptedly and continuously thereby extinguishing the Defendants’ deceased father’s title. It was further submitted that the Plaintiff had similarly made developments to the rental structures erected by his father on the suit property by erecting new rooms, maintaining the same, conducting repairs and refurbishing the same, as well as collecting rent from the tenants. 44 On the applicable law counsel submitted relying on Gabriel Mbui v Mukindia Maranya [1993] eKLR, that adverse possession is established where a stranger asserts nonpermissive, exclusive physical control over land, to the knowledge of the true owner and inconsistent with the latter’s own enjoyment of it and referred the court to Section 38 of the Limitation of Actions Act, which sets out the mechanism by which such a claimant may be registered as proprietor in place of the person then registered. ELC LOS E003 OF 2025 JUDGMENTS 15

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45 It was submitted that, although Article 40(1) of the Constitution guarantees the right to acquire and own property, that right may be extinguished by adverse possession under Section 7 of the Limitation of Actions Act. 46 Counsel further relied on Wambugu v Njuguna (1983) KLR 173 for the proposition that the true inquiry is whether the registered proprietor has been dispossessed or has discontinued possession for the statutory period and on Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR for the five elements a claimant must establish, namely the date of entry into possession, the nature of that possession, whether it was known to the other party, its duration and whether it was open and undisturbed for the requisite twelve years. 47 Reliance was also placed on Samuel Kihamba v Mary Mbaisi [2015] eKLR for the requirement that possession be without force, secrecy or the owner’s permission, coupled with the intention to possess (animus possidendi), summarized in the maxim nec vi, nec clam, nec precario. 48 Applying this framework to the facts, counsel submitted that the Plaintiff’s father had originally occupied the suit land with the permission of the late Daniel Omolo and that this licence lapsed upon Daniel Omolo’s death in 1977, from which point possession became adverse; that the Plaintiff’s own possession from 1982 was at no time permissive and ELC LOS E003 OF 2025 JUDGMENTS 16

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had by then subsisted for roughly forty years; that the Defendants’ own evidence confirmed their knowledge of the Plaintiff’s and his father’s presence on the land throughout with no attempt at eviction until 2023; and that the Plaintiff had, since the deaths of Owiti Okoth and his widows, continued to collect rent, and maintained the rental structures. Counsel accordingly submitted that the Plaintiff had proved his claim on a balance of probabilities and urged the court to grant the orders sought. 49 On the question of costs, counsel submitted, relying on Section 27 of the Civil Procedure Act, that costs ordinarily follow the event, that the award of costs and its quantum lie in the discretion of the court to be exercised judiciously and that the Defendants should accordingly bear the costs of the suit should judgment be entered in the Plaintiff’s favour. ANALYSIS AND DETERMINATION 50 I have carefully considered the pleadings, the documentary and viva voce evidence adduced and the submissions. Arising therefrom, I am of the view that the following issues are for determination: (i) Whether the Plaintiff has proved his claim for adverse possession over the half portion of land parcel No. UYOMA/NAYA/2726. (ii) Who shall bear the costs of the suit? ELC LOS E003 OF 2025 JUDGMENTS 17

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Whether the Plaintiff has proved his claim for adverse possession 51 The doctrine of adverse possession was aptly defined by the Court of Appeal in Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, where the court held as follows: "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 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." 52 The doctrine is codified in the Limitation of Actions Act, Section 7 of which provides: "7. Actions to recover land 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." 53 Section 13(1) of the same Act further provides: - ELC LOS E003 OF 2025 JUDGMENTS 18

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"13. Right of action not to accrue or continue unless adverse possession (1) 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 (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land." 54 Upon the expiry of the twelve-year limitation period, the title of the dispossessed proprietor to the land is extinguished. Section 17 provides that: "At the expiration of the period prescribed by this Act for any person to bring an action to recover land, the title of that person to the land is extinguished." 55 Section 38(1) and (2) states; “(1) Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in section 37 of this ELC LOS E003 OF 2025 JUDGMENTS 19

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Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land. (2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.” 56 It is now settled that a party seeking to succeed in a claim founded on adverse possession must establish, on a balance of probabilities: (a) the date on which he came into possession; (b) the nature of that possession; (c) whether the fact of possession was known to the registered proprietor; (d) the length of time the possession has continued; and (e) that the possession was open, exclusive and undisturbed for the requisite twelve years. 57 The Court of Appeal in Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR, held that a claimant: "Must prove non-permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an ELC LOS E003 OF 2025 JUDGMENTS 20

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uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario ". 58 The Plaintiff's case, is that his father acquired the suit property from the late Daniel Omolo "in a friendly manner," which PW1 clarified on cross-examination to mean by purchase paid in installments. I find this evidence to be of very limited weight since PW1 conceded that he was not shown any sale agreement by his father did not know the purchase price and that his entire knowledge of the transaction derived from what he was told by his parents. 59 PW2 was not able to advance the Plaintiff's case on this point either. He confirmed that he never saw any sale agreement and his own account of the acquisition was, by his own admission obtained secondhand from his sister, one of Owiti Okoth's co-wives. He was moreover, only about twelve years old at the material time in 1977 a fact which further diminishes the reliability of his evidence on this issue. 60 PW3 gave no evidence at all on the question of acquisition, having only arrived in the area in 1980, three years after the events in question, by which time she found Owiti Okoth already settled on the land. 61 Against this, DW1, son of the registered proprietor Daniel Omolo, testified and maintained under cross-examination that his father never sold the half share to Owiti Okoth, but ELC LOS E003 OF 2025 JUDGMENTS 21

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permitted him to live on the property from 1977 "having approached him on account of their friendship." DW2, widow of Daniel Omolo, corroborated the essential permissive character of the arrangement, testifying that Owiti Okoth approached her and her co-wives after her husband's death seeking permission to use the land to dry his fish and was allowed to occupy structures already built by her husband. 62 This court notes an inconsistency between the accounts of DW1 and DW2 as to precisely when and by whom permission was granted. DW1 places it with his father directly while DW2 places it with herself and her co-wives shortly after her husband's death. Nevertheless, the witnesses are of one mind that Owiti Okoth's entry onto the suit property was consensual and permissive in character and not by way of purchase. 63 I am satisfied on a balance of probabilities that the Plaintiff has failed to prove that his father purchased the suit property. I further find on the evidence of DW1 and DW2 that Owiti Okoth entered upon and occupied the suit property with the permission of the registered proprietor the late Daniel Omolo and or his widow from around 1977 64 But having made the above finding the plaintiff claim is that even after his father’s death he continued in occupation of the suit premises. Consequently, the Plaintiff's case must be assessed, if at all as one of adverse possession. ELC LOS E003 OF 2025 JUDGMENTS 22

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65 It is trite and this court reiterates that a claimant in adverse possession must demonstrate occupation that is nec vi, nec clam, nec precario, without force, without secrecy and without the licence or permission of the as stated in the case of Kimani Ruchire v. Swift Rutherfords & Co. Ltd (1980) KLR 10. 66 In Kasuve v Mwaani Investments Ltd & 4 Others (2004) KLR 184 at 188, the Court of Appeal held: "In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and as of right and without interruption for a period of 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition." 67 It has been pleaded by the Defendants that the plaintiff was a licensee. It has been established that occupation of land by consent or license does not accrue any right of adverse possession on the claimant. The court draws from the case of Mwinyi Hamis Ali v. Attorney General & Philemon Mwaisaka Wanaka, Civil Appeal No. 125 of 1997 where the court stated; “Adverse possession does not apply where possession is by consent and in a court of law, ELC LOS E003 OF 2025 JUDGMENTS 23

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sympathy takes a second stand as the Court is governed by statutes.” 68 Where occupation arises out of ties of friendship, kinship or a similarly close relationship there is a rebuttable presumption that the occupation was permitted, reflecting the customary practice of allowing others to remain on one's land. The burden of rebutting that presumption and of proving that any such consent was subsequently withdrawn lies on the claimant. 69 The above position was persuasively elucidated in the case of Rodgers Mwamboje v. Douglas Mwamboje [2014] eKLR, the High court stated: “Indeed, if I was to feign ignorance of the African customs of people accommodating their kin on their land for long periods, I will be visiting calamity on the innocent. Taking a cue from the sentiments of the court in the Mbui case, which I am in agreement with, this court cannot overlook the fact that in the African cultural set up, a brother will more often than not allow his brother or sister to stay on his land whenever necessary. In my view, where a relative, like a brother, a sister, a father, a mother, or even an uncle lives on one’s land, unlike in a case of a stranger, there is a rebuttable presumption that consent (sic) has given consent. The burden of ELC LOS E003 OF 2025 JUDGMENTS 24

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proving that the consent or permission was not given will be on the person claiming the relatives land by virtue of the doctrine of adverse possession.” 70 In the case of Mbui v Maranya [1993] KLR 726 Kuloba J stated as follows: “Now, in this country, go to the country side, where our largest population resides, and see for yourself how people are so caring and mindful of one another's welfare. In the countryside, a lot of people are living on other people's land, thanks to the African milk of generosity and kindness. Our way of living has always been to depend on one another for mutual survival and progress. This is at every level. To us, if you want any help, if you want a cow, if you want a piece of land for as long as the owner does not immediately require it, you are given this thing, because the owner knows that it does not matter for how long you borrow this thing; he can always recover whatever he has lent to you and whatever he has let you use. There are many people who, by a gentleman’s agreement, all over the country, are actually living on the land of their friends, their clansmen, neighbors or even void land sale agreements. They do not ever think of claiming possession…… ELC LOS E003 OF 2025 JUDGMENTS I or losing would be title, surprised by adverse if anyone 25

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pretended to be ignorant of these things. And ignorance on the part of a judge would be a calamity for the innocent. The keeping on our land of landless relatives, clansmen…for long periods of time until they are able to buy their own land is a custom, we all know…. The doctrine of adverse possession if not reasonably qualified and properly trimmed shall destroy the cherished ideals and sound cultural foundations, and destabilize the society.” 71 To that effect where occupation arises out of ties of friendship, kinship or a similarly close relationship there is a rebuttable presumption that the occupation was permitted, reflecting the customary practice of allowing others to remain on one's land. The burden of rebutting that presumption and of proving that any such consent was subsequently withdrawn, lies on the claimant. 72 In the present case, this is not merely a presumption to be inferred from the friendship relationship it has been established by direct and consistent testimony from both DW1 and DW2 that permission was in fact granted and restated. The evidentiary burden accordingly lies squarely on the Plaintiff to prove that this permission was withdrawn and that hostile, adverse possession thereafter ran for the statutory period. I find that he has not discharged this burden. ELC LOS E003 OF 2025 JUDGMENTS 26

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73 In Wambugu v Njuguna (1983) KLR 173, the Court of Appeal held: “Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the license is determined”. 74 It is noteworthy that PW1 himself testified and confirmed on re-examination, that it was only in the year 2024 that the Defendants asked him to vacate the suit property. This does not fortify the plaintiff’s case. The 2024 demand to vacate is not evidence of an earlier withdrawal of consent by the registered proprietors from which twelve years might be computed; It is, on its own terms the Defendants' assertion of title against a Plaintiff whom they regarded as remaining on the land under an unrevoked licence. There is no evidence from PW1, PW2 or PW3 of any act by Owiti Okoth or the Plaintiff asserting a hostile claim of ownership that was communicated to or came to the knowledge of the registered proprietors or their successors at any point prior to 2024. 75 Assuming this court were to treat the 2024 demand to vacate as the moment the licence was finally taken away that's still not enough. Only a few months passed between that 2024 demand and the filing of this case, nowhere close ELC LOS E003 OF 2025 JUDGMENTS 27

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to the required twelve years. The Plaintiff simply hasn't met the twelve-year statutory requirement. 76 I therefore find that the Plaintiff has failed to prove, on a balance of probabilities that the licence granted to his father in 1977 was ever withdrawn by the registered proprietors or their successors more than twelve years prior to the filing of this suit or indeed at all prior to 2024. It follows that no right of action in adverse possession had accrued to the Plaintiff as at the date of filing this suit, within the meaning of Sections 7 and 13 of the Limitation of Actions Act. Who shall bear the costs of this suit? 77 Section 27(1) of the Civil Procedure Act provides as follows: "27. Costs (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge ELC LOS E003 OF 2025 JUDGMENTS 28

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has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order." 78 It is trite that costs follow the event. However, the same are discretionary. Based on the facts and circumstances of this case I think it would be prudent to let each party bear their own costs of this litigation. 79 The upshot of the foregoing is that, the plaintiffs suit commenced by way of Originating Summons dated 15 th January 2025 is hereby dismissed. Each party shall bear its own costs of this suit. Delivered and Dated This 24th Day of September 2026 HON. LADY JUSTICE A.E. DENA JUDGE 24/09/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Mr. Ogonda for 1st & 2nd Respondent Ms. Mukoya for plaintiff N/A for 3rd respondent ELC LOS E003 OF 2025 JUDGMENTS 29

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Court Assistant: Victor Bwire ELC LOS E003 OF 2025 JUDGMENTS 30

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