Agnes Atieno Otieno v Samwel Okoyo Malela

2. The Summons was based on the grounds on the face of it. It was supported by the averments in the Supporting Affidavit sworn by the Applicant. She deponed that the suit property GEM/KANYAJWA/561 was registered in the Respondent’s name. Further, that around 13th March, 1998, they took possession of 1.5 acres of the suit parcel and that they have lived there since. 3. She deposed also, that they have been in continuous, exclusive and uninterrupted possession of the said portion for over 20 years. She added that she had buried her husband on the said portion and has been cultivating on the suit parcel. She added that they have also constructed a home, erected a fence and planted trees. 4. In response, the Respondent filed a Replying Affidavit sworn on 30th September, 2025. He stated that he was the registered owner of the suit parcel where he lives with his three sons. He further stated that he had obtained a judgment in his favour in Homabay ELCLA E036 of 2024 where he managed to recover his suit parcel. 5. He stated that the Applicant had sued him and the matter was heard and a decree issued in her favour. He added that time under the Limitation of Actions Act stopped running when the owner of the land filed a case to recover the same. He added that the Applicant’s allegations are false and without proof of a claim for adverse possession. 6. The Respondent also filed replying affidavits sworn by his two sons Wycliffe Omondi Okonyo and Kevin Odhiambo Okoyo HB ELC E031 OF 2025 (OS)- JUDGEMENT 2

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where they reiterated the contents of the Respondent’s affidavit. PLAINTIFF’S CASE 7. Agnes Atieno Otieno testified as PW1 where she produced her statement dated 5th June, 2025 and the same was adopted as her evidence in chief. She also produced her documents signed on even date as follows: i. Copy of Search Certificate for land parcel Gem/Kanyanjwa/561 – PExh 1 ii. Photographs of the homestead- PExh 2 (a)-(i) 8. She urged the court to order the Respondent to give her the land. 9. Upon cross examination by Ochieng, she admitted that it was not the first time she had sued the Respondent. She stated that she had filed a case in the Chief Magistrate’s court where the outcome was in her favour. She went on to state that in the case she had claimed that her husband had bought the suit land from the Respondent. She added that the Respondent appealed the said decision. 10. PW1 stated that the claim was not dismissed. She also stated that she called her witnesses one of whom was Joseph Otim (deceased) who confirmed that the Respondent had sold the suit parcel to her late husband. She further stated that her husband had built homes for his other wives on the parcel adjacent to each other. PW1 admitted that she did not have a survey report to verify the parcel she had built. HB ELC E031 OF 2025 (OS)- JUDGEMENT 3

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11. She stated that she had built on the 1.5 acres of the suit land while planted on the other part. She urged the court to order the Respondent give her the title to the suit land as it was based on a contract of sale between himself and her late husband. 12. On re-examination, she stated that her claim was on 1.5 acres of the suit parcel. She added that an officer from Lands had taken its measurements. She clarified to the court that the Respondent and his people also resided on the suit land. She also clarified that the land was measured and found to be 1.5 acres. 13. Florence Ajwang a former area Chief of Gem West Location, Rangwe Sub county testified as PW2. It was her testimony that she knew both the Applicant and Respondent as her residents. She stated that she retired in June, 2022. 14. She further testified that she had handled a land dispute between the parties. She produced her statement dated 5 th June, 2026 which was adopted as her evidence in chief. 15. It was her statement that on 2nd December, 2021 as part of solving the dispute between the parties, she took five (5) village men to the suit parcel where they found 24 community members including the Respondent. 16. She also stated that the people on the ground confirmed to her that the Respondent had sold the land to the Applicant’s late husband who then built for him as payment. 17. Upon cross examination, she was referred to PExh 2 (a)-(i) where she confirmed that she recognized the photos as the HB ELC E031 OF 2025 (OS)- JUDGEMENT 4

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Applicant’s home. She stated that Otieno Oyore (deceased) had three wives including the Applicant. 18. She stated that the Applicant occupied the portion to the left while the 2nd and 3rd wives occupied the other part. She added that Otim Joseph in the lower court confirmed that he had sold the land to the Applicant’s husband. 19. PW2 stated that she was not aware whether the houses the deceased built were on the portion sold. She admitted that she could not tell whether the houses were on the 1 st, 2nd or 3rd parcel of land. 20. She confirmed that with regard to the second photograph with the maize plantations, the same was on parcel number 561. She admitted that when she visited the land, she was not accompanied by a surveyor. 21. She stated that she relied on the information by Applicant and the witnesses on the ground who confirmed that the disputed portion was 561. She also admitted that she could not tell the portion they were on. 22. PW2 was referred to the Respondent’s bundle where she stated that the witness confirmed that he sold the parcel on which had structures. 23. She further stated that she could not definitively confirm whether the structures had been built on 561 or the other. 24. Upon re-examination, she stated that the Applicant’s home was situated on part of parcel number 561. She added that the witness in the lower court Joseph Otim stated that the structures built on the land were two. She also stated that HB ELC E031 OF 2025 (OS)- JUDGEMENT 5

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the Respondent and his sons were present when she visited the site. 25. That marked the close of the Plaintiff’s case. DEFENCE CASE 26. Samwel Okoyo Malela testified as DW1 where his Replying Affidavit sworn on 30th September, 2025 and his statement dated 6th August, 2021 was adopted as his evidence in chief. He also relied on the three documents annexed to the affidavit which he produced as follows: i. Judgment in ELC No. 361 of 2024 - DExh 1 ii. Pages 11-15 of the typed proceedings in Chief Magistrate’s court ELC E007 of 2022 - DExh 2 iii. Decree in CMELC No. E007 of 2022 - DExh 3. 27. On cross-examination, he stated that he had succeeded in the appeal against the Applicant and he was given the land. He was referred to paragraph 25 of the judgment where he stated that the court stated that the entire suit was struck out for want of jurisdiction. 28. He stated that the judgment stated that the Applicant should not be given the land. DW1 stated that he testified in the lower court matter where he stated that the Applicant lived on his land for 3 years since 2020. 29. He went on to state that he was not certain as to when the Applicant’s husband had died since he was not living there by then until his return in 2020. He stated that at that time, he had rented a house in Kericho where he visited his home in 2017, 2018 and 2016. HB ELC E031 OF 2025 (OS)- JUDGEMENT 6

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30. DW1 stated that he had left his wife and children at home as he was in Kericho. He also stated that he had not sold the land to the Applicant’s husband but instead he had leased him in 2021. He admitted that he had no evidence to prove that he had leased the land or any witness to confirm the same. He also admitted that he had leased about a quarter of an acre. 31. He also stated that he had built his mabati (iron sheets roofed) house on the parcel. He added that Joseph Otim was his neighbor. DW1 stated that he worked as a tea plucker in Chagaik Estate in Kericho. 32. He stated that he was not aware whether his Kenya Revenue Authority (KRA) Certificate was produced in the lower court. He added that the distance between his house and that of the Applicant was about 200-300 meters. 33. DW1 admitted that he found the Applicant on the land when he came and that the Applicant had already built a permanent house on it. He also admitted that the Applicant was also farming on part of the land. He stated that the lower court found in her favour and that she started farming in the year 2020. He admitted that before the matter was filed in court, they had gone to the chief (PW2) in 2024. 34. DW1 stated that he was not aware that she had retired before 2024. He admitted that the chief, assistant chief and other village mates visited the suit parcel. He admitted that he was present when the chief testified in the lower court. He admitted that he could not recall the year the Applicant built the house on the suit land. DW1 stated that he left out some of the evidence in the lower court so as to establish the truth. HB ELC E031 OF 2025 (OS)- JUDGEMENT 7

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35. On re-examination, he stated that the Applicant’s house was built on Joseph Otim’s land. DW1 clarified to the court that the Applicant’s house was not on his land but that she was farming on about a quarter of an acre of his land. 36. Kevin Odhiambo Okoyo testified as DW2 where he testified that the Respondent was his father. He produced his witness statement dated 30th September, 2025 which was adopted as his evidence in chief. 37. He testified that they lived as a family on the suit land parcel 561. He referred to the 1st photograph (PExh 2 (a) where he testified that the same was Joseph Othiwi’s parcel and that the Applicant’s house was built on the said land. 38. He further testified that the 2nd photo (PExh 2(b) had maize plantations and a house in the background. He testified that they were on Joseph’s land together with all the other photos. DW2 testified that he was present in the lower court and that Joseph was a neighbor. 39. On cross-examination, he stated that the Applicant was their neighbor a fact he knew since when he was young. He stated that he was born in 1998 and she found her as a neighbor. He admitted that he saw her live and cultivate the suit land. He added that as he grew, he found that the three houses had already been built and that there was a space in between them. 40. He also admitted that he did not know when his father came home as he was away from home most of the time due to work. He stated that Chares Oyore (deceased) was buried at the place the houses were built. He stated that he was buried HB ELC E031 OF 2025 (OS)- JUDGEMENT 8

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in between the 1st house (on the left) and the 2nd house. He stated that he could not recall the year he died or the year the chief visited the suit parcel. 41. DW2 stated that the chief stated that the parties settle or agree but they never agreed. He added that he did not know the boundary between parcel 561 and that of Charles Oyore (deceased). He stated that he was aware that the Applicant had built on Joseph’s land. 42. On re-examination, he stated that the houses were on Joseph’s land. He stated that he knew Joseph since he was a child. DW2 clarified to the court that the two parcels were adjacent with no boundary. 43. That marked the close of the Respondent’s case. APPLICANT’S SUBMISSIONS 44. Counsel for the Plaintiff filed his submissions dated 19 th June, 2026 where he identified the following three issues for determination: 1. Whether the applicant has become entitled to the title and ownership of the suit property by virtue of adverse possession and occupation of the suit property. 2. Whether an injunction should issue against the Respondent. 3. Whether the originating summons is merited. 45. On the first issue, it was his submission that the Applicant has been in active, open and uninterrupted occupation for over 20 HB ELC E031 OF 2025 (OS)- JUDGEMENT 9

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years, having built her home and buried her late husband on the parcel. 46. He further conflicting submitted witness that the testimony Respondent’s regarding case gave boundaries and occupation dates. He submitted that the testimony by the former area chief (PW3) corroborated the Applicant’s case. He added that the photographic evidence of her homestead confirmed that the statutory 12-year threshold was met. 47. Counsel relied on the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR), Wambugu v Njuguna (1983) K.L.R. 17 and Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui Supreme Court [2017] in eKLR Karnataka (citing Board the of Indian Wakf v Government of India & Others 10 SCC 779) 48. On the second issue, it was his submission that the Applicant having established long-term adverse occupation hostile to the registered owner's rights, a permanent injunction was necessary to protect her legal rights, secure her quiet enjoyment of the home and prevent eviction or interference by the Respondent or his proxies. 49. He relied on the case of Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another (1990) eKLR and Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib [2018] eKLR. 50. On the final issue, counsel submitted that the previous decision by the subordinate court which the Applicant filed was set aside on appeal and struck out for want of jurisdiction. HB ELC E031 OF 2025 (OS)- JUDGEMENT 10

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51. He argued that in the Kenyan law, a suit dismissed or struck out for lack of jurisdiction could not operate as res judicata and therefore the Originating Summons is competent and properly brought before this court. He relied on Article 40(1) of the Constitution and the Court of Appeal case of Sugawara v Kirut (2024) KECA 1417 (KLR). 52. In conclusion, he urged the court to allow the Applicant’s case as prayed. RESPONDENT’S SUBMISSIONS 53. Counsel for the Respondent filed his submissions dated 10 th July, 2026 where he identified the following issues for determination: i. Has the applicant identified the alleged parcel of land that she deems as having acquired adverse possession over? ii. Whether the applicant occupies the suit land or not? and if so when did such occupation commence? iii. Whether occupation was adverse or permissive. iv. Whether there has been any disputes between the parties or any persons who derive rights and title through any of them or not? And what is the effect thereof. v. Who is to pay the costs of this suit ? 54. On the first issue, he submitted that the Applicant failed to provide evidence that she had occupied 1.5 acres of the suit land GEM/Kanyanjwa 561. He further submitted that on the contrary, the Applicant provided several pieces of evidence to HB ELC E031 OF 2025 (OS)- JUDGEMENT 11

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the effect that her occupation and purchase was of a different parcel of land. 55. He submitted that the Applicant during cross-examination confirmed that her husband had purchased a contiguous parcel of land to the suit land. He went on to submit that she also confirmed that the houses in the pictures she produced as her exhibits were contained on that piece of land. 56. Counsel argued that the structures in the photographs were on a different parcel of land occupied by the Applicant. He added that the Applicant testified that the estate of her husband had one house on the Respondent’s parcel of land while the other two and kitchens were on the land sold by Joseph Ogolla Othim. 57. He went on to argue that without a survey report to confirm, there was no evidence that the single house claimed to be on the suit land was true. He relied on the case of Mc Tough v Hongo & another (Environment and Land Miscellaneous Application 58 of 2017) [2023] KEELC 21425 (KLR) and Section 107 of the Evidence Act (Cap 80). 58. On the second issue, he submitted that the Applicant called the chief as her witness but that the said chief was not aware of the occupation claimed as from the alleged year of 1998. He submitted that the chief only gave evidence that she had only presided over a dispute over the matter in the year 2021. 59. It was counsel’s submission that the portion the Applicant had grown maize had been orally leased to the Applicant’s deceased husband sometime back. He added that the portion which the Applicant’s husband had built permanent houses were on the neighboring parcel. HB ELC E031 OF 2025 (OS)- JUDGEMENT 12

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60. On the third issue, he submitted that the Applicant’s occupation on the part having maize was permissive. He also submitted that the Applicant had not proved by way of evidence whether there was a sale agreement which would have time start to run from the date of breach. 61. He also submitted that the Applicant’s deceased’s husband was never buried on the suit parcel as there was no evidence to prove the same. Counsel. Counsel added that the Respondent was not aware that the Applicant had adversely possessed any portion of the suit land until the suit arose in the lower court in 2022. He submitted that time begun to ran in 2022. He cited the case of Situma v Cherango (2007) 2KLR. 84 and Mwalimu & 6 Others v Halal & Another [2025] KECA 1186 (KLR). 62. He went on to submit that hostility began in 2002 following a rent demand, but that the suit was filed in 2010 being just 8 years later, thereby failing the legal threshold. He submitted that in the present case, hostilities began when the Applicant filed Homa Bay ELC suit No. E007 of 2022. 63. He relied on the case of Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR and Isaac Maobe Okeri v Magero Nyaosi Alias Maute Okeri [2016] eKLR. 64. It was counsel’s submission that the Applicant claimed entry into the alleged suit land by way of a written contract but failed to prove at what point the same was repudiated/terminated/invalidated. HB ELC E031 OF 2025 (OS)- JUDGEMENT 13

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65. On the fourth issue, he submitted that the lower court suit was heard on merit as it was initially filed and judgment rendered ex parte. He submitted that the said proceedings were set aside and the matter proceeded on trial and the suit was granted in the Applicants favour. 66. He went on to submit that the Respondent then appealed the said decision and his appeal was allowed. He added that the Applicant never appealed. Counsel relied on the Court of Appeal case of Francis Gacharu Kariri v Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (UR). 67. On the final issue of costs, he relied on the case of International Child Care Trust (K) v David James Mbogo [2015] eKLR and urged the court to grant the Respondent costs of the suit. 68. In conclusion, he urged the court to dismiss the Plaintiff’s claim for failing to meet the requirements in a claim for adverse possession. ANALYSIS AND DETERMINATION 69. This Court has carefully considered the submissions, the parties’ pleadings, the law and the evidence. It is of the view that the issues that arise for determination are: a) Whether or not the Applicant proved her claim for adverse possession on the 1.5 acres portion of the suit parcel. b) Who should bear the costs of the suit. 70. The doctrine of adverse possession is founded under Sections 7, 13, 17 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, HB ELC E031 OF 2025 (OS)- JUDGEMENT 14

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a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows: “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. Section 13 “(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…” 71. It was the Applicant’s case that together with her late husband they took occupation of land parcel Gem/Kanyanjwa/561 measuring 1.5 acres in 1998. 72. She produced evidence of photographs PExh 2(a)-(i) in support of the same. It was also her case that her late husband Charles Oyore had purchased the suit parcel from one Joseph Otim in 1998. 73. The Applicant claimed that her house had been constructed on the said portion while she also cultivated on the other part of the land and even buried her husband on the land. She claimed HB ELC E031 OF 2025 (OS)- JUDGEMENT 15

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further that she has been living on the said land peacefully, continuously and exclusively for over 20 years. She also called the former chief (PW2) who testified in support of her case. 74. The Respondent on the other hand contends that the Applicant was in occupation of about a quarter acre of his land. He further contends that he had leased the said land to the Applicant but admitted that he had no lease documents to prove the same. 75. He also called his son (DW2) whose evidence, ironically, was in support of the Applicant’s case save for the boundary issue. The Respondent contends that the appeal of the lower court matter was made in his favour thereby granting him the suit parcel. 76. In the case of Abdulkhall Mohamed Abdulkhalik Mazurui & 2 others v Josiah Kafuta J. Mtila & another [2021] KECA 653 (KLR) the court held that: “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, peaceful, without consent of the 1st 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 v Oxfordshire County Council ex p. Sunningwell Parish Council [2000] 1AC 335 at 350, 'not by force, nor stealth, nor the licence of the owner.” HB ELC E031 OF 2025 (OS)- JUDGEMENT 16

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77. In Kasuve v Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove; “In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right 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”. 78. It is this court’s view that the core of the dispute revolves around the ownership and possession of 1.5 acres of Gem/Kanyajwa/561 where the Plaintiff is seeking an order of adverse possession. 79. In the preliminary, it is important to first establish the implication of the judgment both in the lower court and this court touching on the instant matter. 80. It is not in dispute that the Applicant filed a suit against the Respondent in Homabay CMELC E007 of 2022 claiming that she had adversely acquired the suit parcel. It is also not in dispute that evidence was given and the trial court on 11 th July, 2024 delivered its judgment in her favour. 81. The Respondent appealed the said judgment and this court sitting as the appellate court allowed the appeal on the ground that the subordinate court lacked the requisite jurisdiction to hear and determine the matter. 82. This court as a consequence set aside the said judgment and decree and struck out the suit for want of jurisdiction. It is a HB ELC E031 OF 2025 (OS)- JUDGEMENT 17

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fact from the face of the judgment, the court never interrogated the merits of the case on appeal. It is therefore this court’s view that in as much as the appeal was in favour of the Respondent, it never made an order which granted him the suit parcel as alleged. 83. In the case of 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. 84. Further, 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 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. 85. In the instant case, DW2 claimed that the boundary between the two parcels touching on the suit parcel was unknown. It is my opinion that the said allegation is rather misplaced. I hold so because from the evidence and testimony of PW1, the suit parcel measures approximately 1.5 acres while the official search document shows that the entire portion of 561 measures 1.4Ha which is approximately 3 acres. 86. Notably, the said official search shows that in between the suit parcel, a four metre (4m) road passes through it hence there is HB ELC E031 OF 2025 (OS)- JUDGEMENT 18

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a very high possibility that the portion claimed by the Applicant measures 1.5 acres. 87. It is not in dispute that from the photographs produced they clearly depicted the house as well as the testimony by PW2 and DW2, where they easily identified the Applicant’s house on the suit parcel. In addition, DW1 admitted that the distance between his house and that of the Applicant was about 200-300 meters 88. In view of the above, it is this court’s view that the identity and extent of the claimed 1.5-acre portion of the suit parcel was identifiable and therefore no survey was necessary, in order for the determination of the specific part thereof to be known. 89. Now, going to the adverse possession claim, it was the Applicant’s case that she has been in quiet, peaceful and continuous occupation of the suit property after her late husband purchased the same from Joseph. 90. It is this court’s view that the evidence by DW1 was rather contradictory since he claimed that he had built his mabati house on the suit parcel and on the other hand that he had leased a quarter of an acre of his parcel to the Applicant. To buttress this, his son DW2 testified that at the time he was born in 1998 and as he grew as a young man, he found the Applicant living on the suit land and that she had built a house and cultivated on part of the land. He added that the said portion to which the Applicant lived belonged to Joseph their neighbor and not the Respondent. 91. DW2 also admitted that the Applicant had buried her late husband on the suit parcel. He also admitted that the HB ELC E031 OF 2025 (OS)- JUDGEMENT 19

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Respondent rarely visited their home and that he did not know the year he returned. 92. Going by the above, it is this court’s view that it is not in dispute that the Applicant's occupation was open and notorious. She never sneaked onto the land or occupy it by stealth. She was also not permitted by the Defendants or any other. She built a homestead, planted maize and even buried her husband there; everyone saw her occupation and confirmed it. 93. Notably, there was no evidence of interruption since 1998 when she took possession until 2021 when the chief (PW2) visited the land in an attempt to settle the dispute between the Applicant and Respondent. 94. From the above, it is a fact there was no evidence that the Respondent ever entered the suit land, demanded possession, instituted proceedings for recovery Applicant's possession or within otherwise interrupted the the years. the 23 In circumstances, by the time the Applicant filed the suit in the subordinate court being CMCELC E007 of 2022, she had been in adverse possession for over 20 years. 95. I find that the Applicant has proved on a balance of probabilities, that she has been in actual, open, notorious, exclusive possession, and without force, stealth uninterrupted or permission of the registered proprietor from the year 1998 to 2021, a period well in excess of twelve years. HB ELC E031 OF 2025 (OS)- JUDGEMENT 20

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96. 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 therefore entitled to an order under Section 38(1) that she be registered as the proprietor of the suit land in place of the Respondent. 97. The upshot of the foregoing is that the Applicant’s case succeeds in its entirety. I enter judgment for the Plaintiff against the Defendants as follows: a) The Applicant has acquired title to the portion she occupies of land parcel GEM/KANYAJWA/561, measuring 1.5 acres by adverse possession. b) An order is hereby issued directing the Registrar of Lands, Homabay Registry to register the names of AGNES ATIENO OTIENO as proprietor of the portion measuring 1.5 acres of land described as land parcel GEM/KANYAJWA/561 and the Applicant be issued with the title deed in respect of the said parcel of land. c) An order is hereby issued vesting the portion of land measuring 1.5 acres being part of the parcel described as land parcel GEM/KANYAJWA/561, in the names of proprietor AGNES and, in ATIENO default OTIENO as of Respondent the absolute signing all the necessary forms or documents thereto in thirty (30) days of presentation to him, they be signed by the Deputy Registrar of this Court. HB ELC E031 OF 2025 (OS)- JUDGEMENT 21

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d) The Applicant is to cause, at her own cost, the national surveyor in charge of Homabay County, and the Land Registrar of the said County to visit the said parcel of land and carry out a survey to carve out the specific portion of land the Plaintiff occupies on the suit land, for purposes of preparing mutation forms and transfer instruments for registration as directed in (b) and (c) above. e) The Respondent shall bear the costs of the suit. 103 It is so ordered. Judgment dated, signed and delivered virtually via the Teams Platform this 6th day of October 2026. Hon. Dr. iur Nyagaka Judge In the presence of: Ms. Ochieng Advocate for the Applicant Mr. Robert Ochieng Advocate for the Respondent, absent HB ELC E031 OF 2025 (OS)- JUDGEMENT 22

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