I. Preliminaries
1. The Judgement of this Honourable Court pertains to the civil suit instituted by by Ali Omar Hamis, Erick Mulamba, Hassan Swaleh, Raziah Ambari, Mohammed Ala, Amani Masha, George Katana, Peter Wale, Said Ngute, Amina Ibrahim Hassan, Mbululu Nzila, Agnes Sikwa, Naomi Nyamoki, Eunice Chahala, Katana Nzombo, Charles Mwili, Christine Mutemi, Adela Katana, Bandari Festus and Doreen Mwendwa (the Plaintiffs/Applicants herein) who instituted this suit against Hassan Mohamed Saleh Bagha, Edwins Okeyo Otieno, Omar Mohidin Mohamed, Alwiya Omar Sagaf, Aisha Sultan Mbarak Timamy, Fatma Omar Mohidin Hatimy, Umi Omar Mohidin Hatimy, Zulfikir Yusuf Ahmed, Abdulrahim Yusuf Ahmed, Abdulkarim Yusuf Ahmed, Khadija Abubakar Noordean El-Hatimy, Abdulrauf Ramzan Mohamed Hatimy, Duncan Jacob Maghanga, Stephen Munyao and the Lands Registrar Mombasa (the Defendants/Respondents herein) by way of Originating Summons dated 18 th January, 2021 and amended on 2 nd March, 2022 and filed on 3 rd March, 2022. The Summons was premised under the provision of Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 1 Rules 11–14, Order 5 Rule 17, and Order 37 Rules 7 to 19 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
2. Upon filing of the Originating Summons, the Defendants/Respondents entered appearance and filed their respective responses as follows:-
a) Replying Affidavits by the 7 th and 12 th Respondents sworn on 2 nd June, 2021.
b) The 15 th Respondent’s response dated 29 th June, 2022, witness statements, and documentary evidence.
c) None of the other Respondents filed any replies.
3. The Applicants thereafter filed further affidavits and responses to the Defendants’ pleadings. The matter proceeded to full hearing with both parties calling witnesses, producing exhibits, and subsequently closing their cases, paving way for this Court to render its judgment.
4. It is instructive to note that during the pendency of this proceedings, the parties requested that there be a Site Visit ( “Locus in Quo” ) conducted by the Honourable Court. Indeed, on 13 th March, 2026 the Honourable Court conducted a site visit and a report was prepared and shared by the parties for their further input. For ease of reference the said report had been re – produced verbatim as part of this Judgement hereof.
II. Court directions before the hearing
5. On 12 th July, 2022 directions were taken pursuant to the provision of Order 37 Rules 16, 17, 18 and 19 of the Civil Procedure Rules, 2010 whereby the Originating Summon converted to a Plaint, Replying Affidavit to a Defence; Applicants to Plaintiffs; Respondents to Defendants; Annextures to Exhibits. Further, that the matter proceeds by way of adducing “Viva Voce” evidence.
6. On 22 nd November, 2022, after confirming that the Plaintiffs/Applicants had duly complied with the requirements of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court set the matter down for hearing on 20 th March, 2023. The Plaintiffs/Applicants thereafter proceeded to call their witnesses, beginning with PW - 1 and PW - 2, and formally closed their case on the same date.
7. Subsequently, the Defendants/Respondents were granted leave to present their evidence. The 7 th and 12 th Respondents, through their duly appointed attorney, testified and produced documentary exhibits, while the 4 th Defendant was represented by her attorney who also tendered evidence and documents. The Defendants’ case was progressively heard and closed on 20 th November, 2024, upon adoption of the witness statements and documentary bundles of the 11 th and 15 th Defendants by consent of all parties.
8. At the close of both the Plaintiffs’ and Defendants’ cases, the Court directed that the Plaintiffs file and serve their written submissions within 21 days, followed by the Defendants within a similar period of 21 days thereafter. The matter was then fixed for mention on 8 th February, 2025 to confirm compliance and pave way for judgment.
III. The case by the Plaintiffs/Applicants’
9. The Plaintiffs/Applicants claimed that land adverse possession against the Defendants/ Respondents on the following orders: -
a) An ORDER declaring that the Applicants have acquired that whole parcels of land known as 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN and any other sub-division of plot number 310/II/MN by adverse possession.
b) An ORDER directing the bands Registrar Mombasa 15th Respondent to rectify his record/register by cancelling all sub-divisions registered under plot number 310/II/MN including plots 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN.
c) An ORDER directing the Chief Lands Registrar Kwale 15th Respondent to rectify his record by deleting the name of the 1st Respondent and replacing it with the names of the Applicants as the registered proprietors of the whole parcel of land known as plot number 310/II/MN.
d) A PERMANENT INJUNCTION against the Respondents, their officials, administrators, assigns, executors or anybody whatsoever restraining them from evicting or interfering in any manner whatsoever with the Applicants’ peaceful possession and enjoyment of the whole of the said parcels of land known as plot number 310/IIMN.
e) Such other ORDERS as may be deemed appropriate under the circumstances of the case to meet the ends of justice.
10. The Original Summons was based on the following grounds on the face of it and those of the 11 Paragraphed supporting affidavit sworn by ALI OMAR HAMIS, the 1 st Plaintiff/ Applicant sworn on the same day with the Originating summons where the Affiant averred that:-
a) The 1 st Applicant herein, and had knowledge of the matters deposed to with the necessary authority from the other Applicants and was therefore competent to swear the affidavit. The Affiant attached a copy of the letter of authority sworn by the other Applicants in this matter marked as “AOH ‑ 1”..
b) The facts contained therein were, unless otherwise stated or indicated by the context, within the Affiant’s own knowledge and to the best of the Affiant’s belief, true and correct.
c) Legal submissions in the affidavit were made on the advice of Counsel on record, M/s Said Mgupu & Company Advocates, which advice the Affiant embraced.
d) The impugned plots of land (the suit properties), the subject matter of the Originating Summons Application, were initially Plot Number 310/II/MN whose last registered owner was the 1 st Respondent. The Affiant attached a copy of the title deed and a copy of the letter to the Land Registry dated 11 th January, 2021 marked as “AOH ‑ 2”.
e) The Applicants had all along been residing on the suit properties since the year 2000 when they invaded the plot while it was still vacant bush land.
f) Despite of the activities concerning the title that were ongoing before the Lands Registry, that is, the sub ‑ division of the mother plot 310/II/MN, the Applicants had never been approached by any of the Respondents claiming ownership of the suit properties, nor had any received a notice threatening eviction. The Affiant attached copies of recent searches indicating the current registered owner of the alleged sub ‑ divisions marked as “AOH ‑ 3”.
g) The said sub ‑ divisions culminating into the suit properties were in fact suspect, as the Applicants had obtained a recent copy of the title from the Lands Registry which still indicated that the 1 st Respondent was the proprietor of the mother plot 310/II/MN.
h) The Applicants’ claim to the suit properties had by then ripened by way of land adverse possession since they had been in the suit properties from the year 2000, exercising ownership rights by erecting and maintaining permanent residential houses therein, maintaining roads within the suit properties and public access ways, and any subsequent registration and/or sub ‑ division did not dispossess them of the suit properties. The Affiant attached copies of photographs of the houses built on Plot Number 310/II/MN and a certificate of photographs marked as “AOH ‑ 3”.
i) The Applicants had been in continuous, open, and uninterrupted possession of the suit properties to date.
j) It was in the interests of the administration of justice that the order be granted.
k) Wherefore, the Affiant prayed that the Application be allowed as prayed.
11. The Plaintiffs called PW - 1 on 20 th March, 2023 at 2.15 pm wherein the witness told the court that: -
A. Examination in Chief of PW – 1 by Mr. Mgupu Advocate.
12. PW - 1 testified under oath and in Swahili language. He was called ALI OMAR HAMISI, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. He was born on 11 th April, 1985 and that he was in court in respect of Plot No. 310/II/MN. PW - 1 stated that he relied on his supporting affidavit, which he converted into a witness statement and adopted as his evidence. He produced the documents attached to the supporting affidavit, being six exhibits marked as Plaintiff Exhibit Numbers 1, 2 (a)–(c), 3 (a)–(m), 4, and 5 (a)–(e).
13. PW - 1 told the court that he was born at Bakarani Kasauni within the County of Mombasa, where he lived until the age of fifteen. He averred that he later moved to Bombo within Kiembeni, Mombasa County, together with his family, having been relocated there by his father.
14. PW - 1 testified that the family had lived at Bakarani as tenants and used to pay rent. He stated that his father later informed them that he had identified and acquired a plot at Bombo, where he had constructed a mud ‑ walled house. PW- 1 told the court that his father explained that they had taken over Plot No. 310/II/MN together with others, each of whom had received their respective portions.
15. PW - 1 averred that, in accordance with tradition, his father apportioned him a portion measuring 50 feet by 80 feet, upon which he constructed a mud house and kept poultry. He testified that after completing his schooling between the years 2000 and 2016, he built a better house. He stated that over time, more people settled on the land, roads were constructed, and the community grew without interruption.
16. PW - 1 told the court that he progressively improved his house, initially from a makuti ‑ thatched structure, as he secured employment first as a teacher and later with the County Government. He stated that his father passed away in the year 2016, but he himself had remained on the land for over 20 years.
17. PW - 1 testified that in the year 2021 he encountered an elder who claimed ownership of the land. He averred that the elder, accompanied by advocates, coerced him into signing a sale agreement under threat of eviction and demolition of his house. PW - 1 stated that he signed the agreement out of fear of losing his land.
18. PW - 1 told the court that he later consulted the committee, who advised him to engage an advocate. The advocate blamed him for signing the agreement without first conducting an official search. PW - 1 testified that upon conducting the search, he discovered that Plot No. 310/II/MN had been sub - divided into several plots, but the individuals who coerced him into signing the agreement were not the registered owners and held no title deeds.
19. PW - 1 averred that he had lived on the land continuously, openly, and without interruption. He stated that his father was buried there in accordance with Islamic rites, and his sister was married from the same land. He told the court that he had nowhere else to go and therefore prayed to be granted title to the land by way of adverse possession, noting that his neighbours had already been issued with title deeds.
B. Cross examination of PW - 1 by M/s. Aliya Advocate.
20. PW - 1 told the court that his father took them to Bombo in the year 2002. PW - 1 testified that he started building his house in the year 2006 and that construction was still ongoing, with the house not yet completed.
21. PW - 1 stated that he never reported to the police about being forced or compelled to sign the agreement, but instead informed his advocate. PW - 1 averred that when shown his statement and supporting affidavit dated 2 nd March, 2022, it did not contain any allegation of him being forced or compelled to sign the sale agreement.
22. PW - 1 told the court that under the said agreement, he was to pay a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) for the land.
C. Cross Examination of PW - 1 by M/s. Kiti Advocate.
23. PW - 1 told the Court that from the year 2000 up to the present, he and his family had lived on the land. PW - 1 testified that they never bothered to establish whether there was a legal owner of the property.
24. PW - 1 stated that they knew the land was Plot No. 310/II/MN, but they never took steps to ascertain who the registered owner was.
D. Re - Examination of PW - 1 by Mr. Mgupu Advocate.
25. PW - 1 stated that the sale agreement to buy the land was between the lady and himself. The lady neither had a title deed nor Power of Attorney.
26. The Plaintiffs called PW - 2 who told the court that:
B. Examination in Chief of PW - 2 by Mr. Mgupu Advocate.
27. PW - 2 was sworn and testified in Swahili. She was called RAZIAH MAKHUNGU AMBARI, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. She testified that she lived in Bombo and worked for Kenya Power and Lighting Company (KPLC). She told the court that she had been brought up elsewhere but later moved to Bombo. PW - 2 averred that after completing her secondary school education, she came to live with her brother in the year 2006 while seeking employment. She testified that she was initially employed at Mtopanga, selling clothes.
28. PW - 2 told the court that she was approached by a lady known as Mama Ngecha who informed her that land was being apportioned to people, and upon being shown a portion, one was required to build their own structures. PW - 2 stated that at the time she was twenty years old. She constructed a mud house with a makuti roof, which she later refurbished by fixing electricity and replacing the roof with iron sheets. PW - 2 testified that many families lived on the land, and she did not pay rent to anyone. She stated that nobody had ever claimed ownership of Plot No. 310/II/MN until recently. PW - 2 told the court that she was now married and lived there with her family, undertaking all her activities on the land, including ceremonies, funerals, and burials.
29. PW - 2 averred that she was in court because she and others had received information that someone was claiming ownership of Plot No. 310. She stated that they engaged an advocate, who conducted an official search and discovered that in 2011 the land had been sub - divided. PW - 2 testified that she and her family had been on the land for over twelve years, openly and without interruption, and therefore prayed to be granted ownership by way of adverse possession. She further requested the Court to conduct a site visit to ascertain their occupation and developments on the land.
B. Cross examination of PW - 2 by M/s. Aliya Advocate.
30. PW - 2 told the court that it was the village elders who had been apportioning the land. PW - 2 testified that the elders were of advanced age, and she believed that they were the rightful owners of the land. PW - 2 stated that they would pay the elders approximately a sum of Kenya Shillings Five Hundred (Kshs. 500/-) to Kenya Shillings One Thousand Five Hundred (Kshs. 1,500/-) in order to be shown a portion of the land. PW - 2 averred that she was aware that the allocation of land was ordinarily the role of Government, but she was not informed of the specific details of her portion, such as the deed plan or title number.
31. PW - 2 told the court that she had been on the land since the year 2006. PW - 2 testified that there was a meeting convened after an official search was conducted for Plot No. 310, during which they were informed that one person was claiming a portion of the land.
C. Cross Examination PW - 2 by M/s. Kiti Advocate.
32. PW - 2 confirmed that she only knew of the village elders and a few people who take care of the welfare. She was not one of them. She knew they were many but not the exact number of people.
D. Re – Examination in Chief of PW - 2 by Mr. Mgupu Advocate.
33. PW - 2 reiterated that she worked with Kenya Power and Lighting Company (KPLC) and was not an expert in land matters. PW - 2 testified that upon being shown a portion of land, she never got to know whether it had a specific number or deed plan. PW - 2 stated that what she knew was that her portion was derived from Plot No. 310/II/MN. PW - 2 averred that she only came to learn of the subdivision of the land from her advocate. PW - 2 told the court that she was never issued with any document in respect of her portion, nor was there any written agreement. PW - 2 testified that it was Mama Ngecha who directed them to the land and apportioned the portions.
34. On 20 th March, 2023 the Plaintiffs marked their case closed through their Counsel on record Mr. Mgupu Advocate.
IV. The case by the 4 th , 7 th , 11 th and 12 th Defendants
35. The Defendants’ responded to the Originating summons through a 15 Paragraphed Replying Affidavit sworn by RIWAYA MOHAMED RAMAZAN on 2 nd June, 2021 where the Affiant averred as follows that: -
a) The Affiant was the duly appointed Power of Attorney of the 7 th and 12 th Respondents herein and was well ‑ versed with the matters in question, therefore competent to swear the affidavit in reply to the Originating Summons filed by the Plaintiffs/Applicants on the 18 th January, 2021.
b) The 7 th and 12 th Respondents were the registered owners of the parcels of land known as C.R 47977 and C.R 47965 (the “Properties”). Annexed and marked as “UA ‑ 1” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47977 belonged to the 7 th Respondent, whereas marked as “UA ‑ 2” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47965 belonged to the 12 th Respondent.
c) The 7 th and 12 th Respondents had purchased the Properties from Hassan Mohamed Saleh Bagha and Hussein Shariff Omar. Annexed and marked as “UA ‑ 3” was the transfer document confirming the transfer of C.R 47977 to the 7 th Respondent, whereas annexed and marked as “UA ‑ 4” was the transfer document confirming the transfer of C.R 47965 to the 12 th Respondent.
d) The registration of the Properties in favour of the 7 th and 12 th Respondents was completed on 16 th March, 2011, whereupon they took vacant possession of the Properties.
e) The 7 th and 12 th Respondents had been regularly visiting the Properties to ensure they were well maintained and had been paying the land rates at the required times. Annexed and marked as “UA ‑ 5” were copies of the land rates receipts in respect of the Properties.
f) The 7 th and 12 th Respondents vehemently denied the contents of Paragraphs 3, 4 and 5 of the Applicants’ supporting affidavit and categorically stated that the Plaintiffs/Applicants invaded and trespassed on the suit Properties on or around October, 2020.
g) They had therefore barely been there for a few months, let alone the period of 12 years as claimed. The 7 th and 12 th Respondents had at all relevant times been in occupation and possession of the Properties.
h) It was only recently, on or around October, 2020, when the 12 th Respondent’s father, one Ramzan Mohamed, was informed by an acquaintance that some strangers had invaded the Properties and were illegally carrying out construction activities without the consent of the registered owners.
i) The 7 th and 12 th Respondents denied the contents of Paragraph 6 of the Applicants’ supporting affidavit and stated that upon receiving information of strangers commencing construction on their Properties around October, 2020, they immediately sent Ramzan Mohamed to notify the Applicants to vacate the Properties on the basis that they had illegally trespassed.
j) In further response to paragraph 6, and as advised by the 7 th and 12 th Respondents’ advocate on record, the Applicants were claiming adverse possession of the property yet had not met the requirements of establishing such a claim, including but not limited to possession being without permission and being notorious.
k) The 7 th and 12 th Respondents further stated that it was unconscionable that illegal squatters could invade private property and later falsely allege to have stayed thereon for more than 12 years in order to claim it by adverse possession. They termed this outright theft which the law should not condone.
l) None of the orders prayed for ought to be granted as the Plaintiffs/Applicants had barely resided on the suit property and, in fact, from October, 2020 were illegally trespassing upon and erecting structures on the Properties, thereby prejudicing and interfering with the 7 th and 12 th Respondents’ fundamental rights to exclusively enjoy their Properties.
m) The Affiant stated that the application was frivolous, vexatious, and an abuse of the court process. The Applicants were attempting to use the judicial process to illegally and improperly acquire land from innocent bona fide owners.
n) To allow the instant application would set a bad precedent and open floodgate to unscrupulous persons who would run to court to seek similar declarations over land parcels they were not entitled to, leaving bona fide landowners at the mercy of such persons, with far ‑ reaching implications on the sanctity of titles.
o) The 7 th and 12 th Respondents swore the affidavit in opposition to the Originating Summons filed by the Plaintiffs/Applicants and prayed that the suit be dismissed with costs.
36. On 20 th March, 2023 the Defendants called their 1 st witness DW - 1 who told the court that: -
C. Examination in Chief of DW – 1 by M/s. Aliya Advocate.
37. DW - 1 was sworn and testified in English language. She was called RIWAYA RAMZAN MOHAMED, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. She testified having been living at Sakuya Mosque. She stated that the 7 th Respondent, Umi Omar Mohidin Hatimu, was her daughter ‑ in ‑ law, and the 12 th Respondent, Mr. Abdulrauf Ramzan Mohamed Hatimu, was her son. DW - 1 told the court that she converted her replying affidavit into a witness statement and adopted it as her evidence.
38. DW - 1 testified that the 7 th and 12 th Respondents had purchased land from Mr. Hassan Mohamed Saleh Bagha (the 1 st Respondent) and Mr. Hussein Shariff Omar, who were joint owners, at a consideration of approximately sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-). DW - 1 stated that the parcels acquired were Plots No. CR 47977 and CR 47965. After purchase, the plots were transferred to the Respondents and title deeds were issued in their names. DW - 1 produced and admitted annexures as Defendants’ Exhibits 1 to 7, namely:
• Copy of Title No. CR 47977.
• Copy of Title No. CR 47965.
• Copy of Transfer for Plot 47977.
• Copy of Transfer for Plot 47965.
• County Government receipts.
• Sale Agreement dated 14 th November, 2020 between M/s. Riwaya Ramzan Mohamed and Ali Hamisi.
• Copy of the Power of Attorney.
39. The Court was shown the original Power of Attorney. The two title deeds were to be produced at a later stage and were marked as Defendant “MFI 1 & 2”.
40. DW - 1 testified that upon purchasing the land and receiving title, they went to the property and chose a portion where there was a house. The purchase was made in the year 2011, and they had planned to construct a perimeter wall. DW - 1 stated that they had a caretaker on the property until year 2017. She explained that they left the land under the caretaker’s watch, but in the year 2020 they learned that a person had encroached and erected structures. DW - 1 told the court that during this period, Mzee and a tuktuk driver were attacked and hospitalized. The matter was reported to the police.
41. DW - 1 testified that the police visited the site, and Mr. Ali approached them, urging that his structures not be demolished. They offered to sell the land to him at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-), and a sale agreement was documented before an advocate. DW - 1 stated that Mr. Ali signed the agreement freely and was given a copy, but thereafter avoided them by giving excuses of being at the mosque.
42. DW - 1 averred that their advocate advised demolition of the structures, but they declined, describing themselves as peaceful people. Instead, they were sued over the matter. DW - 1 testified that they had been paying rates for the two plots. She stated that the caretaker was manipulated, given money, and disappeared, after which their house was broken into. DW - 1 told the court that they never visited the property again after Mzee was beaten by over 40 people. She emphasized that they owned the land and held valid title deeds, having first learned of the encroachment in the year 2011. DW - 1 concluded by stating that even the police feared being beaten up when dealing with the matter.
B. Cross Examination of DW - 1 by Mr. Mgupu Advocate.
43. DW - 1 testified that she was using the General Power of Attorney to testify in court. She stated that it was dated 9 th February, 2021 and registered on 8 th March, 2021. DW - 1 told the court that she did not know when the Power of Attorney was filed, noting that the case had been filed on 19 th January, 2021, before the Power of Attorney was registered.
44. DW - 1 testified that she had produced a Sale Agreement dated 14 th November, 2020, which was executed before the registration of the Power of Attorney. She stated that she had another Power of Attorney which had not been produced in court. DW - 1 averred that the 7 th Respondent was her daughter ‑ in ‑ law and the 12 th Respondent was her son, and that they had donated the Power of Attorney to her as they were out of the country.
45. DW - 1 told the court that according to the Power of Attorney, both the 7 th and 12 th Respondents were citizens of the United Kingdom. She stated that she was not aware of the relevant provisions of the Constitution regarding this. DW - 1 testified that she could not remember when the two transfers were executed. DW - 1 stated that she had been paying land rates up to 2 nd March, 2021, and emphasized that they used to pay rates regularly, not just after the civil case was filed in court.
46. DW - 1 told the court that from the transfer documents, the consideration was a sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-) for each plot. DW - 1 testified that they had intended to sell the property at a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) but offered it at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-). She stated that she could sell the property at any price as it was their property. DW - 1 averred that according to the photographs on the transfer documents, they appeared to be of the same person. DW - 1 told the court that she had no idea how long the 7 th and 12 th Respondents had been away. She stated that it was she and Mzee who had been visiting the plot, including in the year 2020.
47. DW - 1 testified that she visited the land as a parent and recalled visiting it in a particular year. She stated that they had a caretaker, Mr. Omar, but had no proof of payment as his employer. DW - 1 told the court that she did not need a Power of Attorney to act. She stated that she did not have an OB number of the complaint lodged by Mzee regarding the assault. DW - 1 testified that she believed the assault had been arranged, and alleged that Mr. Ali was one of those who organized the attack. DW - 1 stated that she had no proof of any notice to vacate the premises or suit property.
C. Cross examination of DW - 1 by M/s. Kiti Advocate.
48. DW - 1 testified that she went to the property in the year 2011. DW - 1 told the court that at the time, the property was vacant except for a three ‑ bedroom house where a lady resided. DW - 1 stated that the lady was poor and lived there under difficult circumstances.
49. DW - 1 testified that she believed Omar acted as a caretaker and used to live there. DW - 1 averred that Omar was performing caretaker duties for many people. DW - 1 told the court that from the years 2011 to 2020 there was a caretaker on the property.
50. DW - 1 testified that it was only in year 2020 when they discovered that Mr. Ali had started building structures on the land.
D. Re - Examination of DW - 1 by M/s. Aliya Advocate.
51. The witness reiterated that there had been a caretaker on the property from the years 2011 to 2017, after which the caretaker left. DW - 1 told the court that the caretaker had been paid by many people for his services. DW - 1 stated that it was in the year 2020 when she discovered that Mr. Ali had started building on the property and continued with construction.
52. DW - 1 testified that Mr. Ali had agreed to purchase the property for a sum of Kenya Shillings
[...truncated]
1. The Judgement of this Honourable Court pertains to the civil suit instituted by by Ali Omar Hamis, Erick Mulamba, Hassan Swaleh, Raziah Ambari, Mohammed Ala, Amani Masha, George Katana, Peter Wale, Said Ngute, Amina Ibrahim Hassan, Mbululu Nzila, Agnes Sikwa, Naomi Nyamoki, Eunice Chahala, Katana Nzombo, Charles Mwili, Christine Mutemi, Adela Katana, Bandari Festus and Doreen Mwendwa (the Plaintiffs/Applicants herein) who instituted this suit against Hassan Mohamed Saleh Bagha, Edwins Okeyo Otieno, Omar Mohidin Mohamed, Alwiya Omar Sagaf, Aisha Sultan Mbarak Timamy, Fatma Omar Mohidin Hatimy, Umi Omar Mohidin Hatimy, Zulfikir Yusuf Ahmed, Abdulrahim Yusuf Ahmed, Abdulkarim Yusuf Ahmed, Khadija Abubakar Noordean El-Hatimy, Abdulrauf Ramzan Mohamed Hatimy, Duncan Jacob Maghanga, Stephen Munyao and the Lands Registrar Mombasa (the Defendants/Respondents herein) by way of Originating Summons dated 18 th January, 2021 and amended on 2 nd March, 2022 and filed on 3 rd March, 2022. The Summons was premised under the provision of Sections 7, 13, 17, 37 and 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 1 Rules 11–14, Order 5 Rule 17, and Order 37 Rules 7 to 19 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
2. Upon filing of the Originating Summons, the Defendants/Respondents entered appearance and filed their respective responses as follows:-
a) Replying Affidavits by the 7 th and 12 th Respondents sworn on 2 nd June, 2021.
b) The 15 th Respondent’s response dated 29 th June, 2022, witness statements, and documentary evidence.
c) None of the other Respondents filed any replies.
3. The Applicants thereafter filed further affidavits and responses to the Defendants’ pleadings. The matter proceeded to full hearing with both parties calling witnesses, producing exhibits, and subsequently closing their cases, paving way for this Court to render its judgment.
4. It is instructive to note that during the pendency of this proceedings, the parties requested that there be a Site Visit ( “Locus in Quo” ) conducted by the Honourable Court. Indeed, on 13 th March, 2026 the Honourable Court conducted a site visit and a report was prepared and shared by the parties for their further input. For ease of reference the said report had been re – produced verbatim as part of this Judgement hereof.
II. Court directions before the hearing
5. On 12 th July, 2022 directions were taken pursuant to the provision of Order 37 Rules 16, 17, 18 and 19 of the Civil Procedure Rules, 2010 whereby the Originating Summon converted to a Plaint, Replying Affidavit to a Defence; Applicants to Plaintiffs; Respondents to Defendants; Annextures to Exhibits. Further, that the matter proceeds by way of adducing “Viva Voce” evidence.
6. On 22 nd November, 2022, after confirming that the Plaintiffs/Applicants had duly complied with the requirements of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court set the matter down for hearing on 20 th March, 2023. The Plaintiffs/Applicants thereafter proceeded to call their witnesses, beginning with PW - 1 and PW - 2, and formally closed their case on the same date.
7. Subsequently, the Defendants/Respondents were granted leave to present their evidence. The 7 th and 12 th Respondents, through their duly appointed attorney, testified and produced documentary exhibits, while the 4 th Defendant was represented by her attorney who also tendered evidence and documents. The Defendants’ case was progressively heard and closed on 20 th November, 2024, upon adoption of the witness statements and documentary bundles of the 11 th and 15 th Defendants by consent of all parties.
8. At the close of both the Plaintiffs’ and Defendants’ cases, the Court directed that the Plaintiffs file and serve their written submissions within 21 days, followed by the Defendants within a similar period of 21 days thereafter. The matter was then fixed for mention on 8 th February, 2025 to confirm compliance and pave way for judgment.
III. The case by the Plaintiffs/Applicants’
9. The Plaintiffs/Applicants claimed that land adverse possession against the Defendants/ Respondents on the following orders: -
a) An ORDER declaring that the Applicants have acquired that whole parcels of land known as 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN and any other sub-division of plot number 310/II/MN by adverse possession.
b) An ORDER directing the bands Registrar Mombasa 15th Respondent to rectify his record/register by cancelling all sub-divisions registered under plot number 310/II/MN including plots 11264/II/MN, 11258/II/MN, 11256/II/MN, 11255/II/MN, 11254/II/MN, 11253/II/MN, 11252/II/MN, 11252/II/MN, 11250/II/MN, 11249/II/MN, 11247/II/MN, 11248/II/MN and 11246/II/MN.
c) An ORDER directing the Chief Lands Registrar Kwale 15th Respondent to rectify his record by deleting the name of the 1st Respondent and replacing it with the names of the Applicants as the registered proprietors of the whole parcel of land known as plot number 310/II/MN.
d) A PERMANENT INJUNCTION against the Respondents, their officials, administrators, assigns, executors or anybody whatsoever restraining them from evicting or interfering in any manner whatsoever with the Applicants’ peaceful possession and enjoyment of the whole of the said parcels of land known as plot number 310/IIMN.
e) Such other ORDERS as may be deemed appropriate under the circumstances of the case to meet the ends of justice.
10. The Original Summons was based on the following grounds on the face of it and those of the 11 Paragraphed supporting affidavit sworn by ALI OMAR HAMIS, the 1 st Plaintiff/ Applicant sworn on the same day with the Originating summons where the Affiant averred that:-
a) The 1 st Applicant herein, and had knowledge of the matters deposed to with the necessary authority from the other Applicants and was therefore competent to swear the affidavit. The Affiant attached a copy of the letter of authority sworn by the other Applicants in this matter marked as “AOH ‑ 1”..
b) The facts contained therein were, unless otherwise stated or indicated by the context, within the Affiant’s own knowledge and to the best of the Affiant’s belief, true and correct.
c) Legal submissions in the affidavit were made on the advice of Counsel on record, M/s Said Mgupu & Company Advocates, which advice the Affiant embraced.
d) The impugned plots of land (the suit properties), the subject matter of the Originating Summons Application, were initially Plot Number 310/II/MN whose last registered owner was the 1 st Respondent. The Affiant attached a copy of the title deed and a copy of the letter to the Land Registry dated 11 th January, 2021 marked as “AOH ‑ 2”.
e) The Applicants had all along been residing on the suit properties since the year 2000 when they invaded the plot while it was still vacant bush land.
f) Despite of the activities concerning the title that were ongoing before the Lands Registry, that is, the sub ‑ division of the mother plot 310/II/MN, the Applicants had never been approached by any of the Respondents claiming ownership of the suit properties, nor had any received a notice threatening eviction. The Affiant attached copies of recent searches indicating the current registered owner of the alleged sub ‑ divisions marked as “AOH ‑ 3”.
g) The said sub ‑ divisions culminating into the suit properties were in fact suspect, as the Applicants had obtained a recent copy of the title from the Lands Registry which still indicated that the 1 st Respondent was the proprietor of the mother plot 310/II/MN.
h) The Applicants’ claim to the suit properties had by then ripened by way of land adverse possession since they had been in the suit properties from the year 2000, exercising ownership rights by erecting and maintaining permanent residential houses therein, maintaining roads within the suit properties and public access ways, and any subsequent registration and/or sub ‑ division did not dispossess them of the suit properties. The Affiant attached copies of photographs of the houses built on Plot Number 310/II/MN and a certificate of photographs marked as “AOH ‑ 3”.
i) The Applicants had been in continuous, open, and uninterrupted possession of the suit properties to date.
j) It was in the interests of the administration of justice that the order be granted.
k) Wherefore, the Affiant prayed that the Application be allowed as prayed.
11. The Plaintiffs called PW - 1 on 20 th March, 2023 at 2.15 pm wherein the witness told the court that: -
A. Examination in Chief of PW – 1 by Mr. Mgupu Advocate.
12. PW - 1 testified under oath and in Swahili language. He was called ALI OMAR HAMISI, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. He was born on 11 th April, 1985 and that he was in court in respect of Plot No. 310/II/MN. PW - 1 stated that he relied on his supporting affidavit, which he converted into a witness statement and adopted as his evidence. He produced the documents attached to the supporting affidavit, being six exhibits marked as Plaintiff Exhibit Numbers 1, 2 (a)–(c), 3 (a)–(m), 4, and 5 (a)–(e).
13. PW - 1 told the court that he was born at Bakarani Kasauni within the County of Mombasa, where he lived until the age of fifteen. He averred that he later moved to Bombo within Kiembeni, Mombasa County, together with his family, having been relocated there by his father.
14. PW - 1 testified that the family had lived at Bakarani as tenants and used to pay rent. He stated that his father later informed them that he had identified and acquired a plot at Bombo, where he had constructed a mud ‑ walled house. PW- 1 told the court that his father explained that they had taken over Plot No. 310/II/MN together with others, each of whom had received their respective portions.
15. PW - 1 averred that, in accordance with tradition, his father apportioned him a portion measuring 50 feet by 80 feet, upon which he constructed a mud house and kept poultry. He testified that after completing his schooling between the years 2000 and 2016, he built a better house. He stated that over time, more people settled on the land, roads were constructed, and the community grew without interruption.
16. PW - 1 told the court that he progressively improved his house, initially from a makuti ‑ thatched structure, as he secured employment first as a teacher and later with the County Government. He stated that his father passed away in the year 2016, but he himself had remained on the land for over 20 years.
17. PW - 1 testified that in the year 2021 he encountered an elder who claimed ownership of the land. He averred that the elder, accompanied by advocates, coerced him into signing a sale agreement under threat of eviction and demolition of his house. PW - 1 stated that he signed the agreement out of fear of losing his land.
18. PW - 1 told the court that he later consulted the committee, who advised him to engage an advocate. The advocate blamed him for signing the agreement without first conducting an official search. PW - 1 testified that upon conducting the search, he discovered that Plot No. 310/II/MN had been sub - divided into several plots, but the individuals who coerced him into signing the agreement were not the registered owners and held no title deeds.
19. PW - 1 averred that he had lived on the land continuously, openly, and without interruption. He stated that his father was buried there in accordance with Islamic rites, and his sister was married from the same land. He told the court that he had nowhere else to go and therefore prayed to be granted title to the land by way of adverse possession, noting that his neighbours had already been issued with title deeds.
B. Cross examination of PW - 1 by M/s. Aliya Advocate.
20. PW - 1 told the court that his father took them to Bombo in the year 2002. PW - 1 testified that he started building his house in the year 2006 and that construction was still ongoing, with the house not yet completed.
21. PW - 1 stated that he never reported to the police about being forced or compelled to sign the agreement, but instead informed his advocate. PW - 1 averred that when shown his statement and supporting affidavit dated 2 nd March, 2022, it did not contain any allegation of him being forced or compelled to sign the sale agreement.
22. PW - 1 told the court that under the said agreement, he was to pay a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-) for the land.
C. Cross Examination of PW - 1 by M/s. Kiti Advocate.
23. PW - 1 told the Court that from the year 2000 up to the present, he and his family had lived on the land. PW - 1 testified that they never bothered to establish whether there was a legal owner of the property.
24. PW - 1 stated that they knew the land was Plot No. 310/II/MN, but they never took steps to ascertain who the registered owner was.
D. Re - Examination of PW - 1 by Mr. Mgupu Advocate.
25. PW - 1 stated that the sale agreement to buy the land was between the lady and himself. The lady neither had a title deed nor Power of Attorney.
26. The Plaintiffs called PW - 2 who told the court that:
B. Examination in Chief of PW - 2 by Mr. Mgupu Advocate.
27. PW - 2 was sworn and testified in Swahili. She was called RAZIAH MAKHUNGU AMBARI, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing. She testified that she lived in Bombo and worked for Kenya Power and Lighting Company (KPLC). She told the court that she had been brought up elsewhere but later moved to Bombo. PW - 2 averred that after completing her secondary school education, she came to live with her brother in the year 2006 while seeking employment. She testified that she was initially employed at Mtopanga, selling clothes.
28. PW - 2 told the court that she was approached by a lady known as Mama Ngecha who informed her that land was being apportioned to people, and upon being shown a portion, one was required to build their own structures. PW - 2 stated that at the time she was twenty years old. She constructed a mud house with a makuti roof, which she later refurbished by fixing electricity and replacing the roof with iron sheets. PW - 2 testified that many families lived on the land, and she did not pay rent to anyone. She stated that nobody had ever claimed ownership of Plot No. 310/II/MN until recently. PW - 2 told the court that she was now married and lived there with her family, undertaking all her activities on the land, including ceremonies, funerals, and burials.
29. PW - 2 averred that she was in court because she and others had received information that someone was claiming ownership of Plot No. 310. She stated that they engaged an advocate, who conducted an official search and discovered that in 2011 the land had been sub - divided. PW - 2 testified that she and her family had been on the land for over twelve years, openly and without interruption, and therefore prayed to be granted ownership by way of adverse possession. She further requested the Court to conduct a site visit to ascertain their occupation and developments on the land.
B. Cross examination of PW - 2 by M/s. Aliya Advocate.
30. PW - 2 told the court that it was the village elders who had been apportioning the land. PW - 2 testified that the elders were of advanced age, and she believed that they were the rightful owners of the land. PW - 2 stated that they would pay the elders approximately a sum of Kenya Shillings Five Hundred (Kshs. 500/-) to Kenya Shillings One Thousand Five Hundred (Kshs. 1,500/-) in order to be shown a portion of the land. PW - 2 averred that she was aware that the allocation of land was ordinarily the role of Government, but she was not informed of the specific details of her portion, such as the deed plan or title number.
31. PW - 2 told the court that she had been on the land since the year 2006. PW - 2 testified that there was a meeting convened after an official search was conducted for Plot No. 310, during which they were informed that one person was claiming a portion of the land.
C. Cross Examination PW - 2 by M/s. Kiti Advocate.
32. PW - 2 confirmed that she only knew of the village elders and a few people who take care of the welfare. She was not one of them. She knew they were many but not the exact number of people.
D. Re – Examination in Chief of PW - 2 by Mr. Mgupu Advocate.
33. PW - 2 reiterated that she worked with Kenya Power and Lighting Company (KPLC) and was not an expert in land matters. PW - 2 testified that upon being shown a portion of land, she never got to know whether it had a specific number or deed plan. PW - 2 stated that what she knew was that her portion was derived from Plot No. 310/II/MN. PW - 2 averred that she only came to learn of the subdivision of the land from her advocate. PW - 2 told the court that she was never issued with any document in respect of her portion, nor was there any written agreement. PW - 2 testified that it was Mama Ngecha who directed them to the land and apportioned the portions.
34. On 20 th March, 2023 the Plaintiffs marked their case closed through their Counsel on record Mr. Mgupu Advocate.
IV. The case by the 4 th , 7 th , 11 th and 12 th Defendants
35. The Defendants’ responded to the Originating summons through a 15 Paragraphed Replying Affidavit sworn by RIWAYA MOHAMED RAMAZAN on 2 nd June, 2021 where the Affiant averred as follows that: -
a) The Affiant was the duly appointed Power of Attorney of the 7 th and 12 th Respondents herein and was well ‑ versed with the matters in question, therefore competent to swear the affidavit in reply to the Originating Summons filed by the Plaintiffs/Applicants on the 18 th January, 2021.
b) The 7 th and 12 th Respondents were the registered owners of the parcels of land known as C.R 47977 and C.R 47965 (the “Properties”). Annexed and marked as “UA ‑ 1” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47977 belonged to the 7 th Respondent, whereas marked as “UA ‑ 2” was a copy of the Certificate of Title confirming that the parcel of land known as C.R 47965 belonged to the 12 th Respondent.
c) The 7 th and 12 th Respondents had purchased the Properties from Hassan Mohamed Saleh Bagha and Hussein Shariff Omar. Annexed and marked as “UA ‑ 3” was the transfer document confirming the transfer of C.R 47977 to the 7 th Respondent, whereas annexed and marked as “UA ‑ 4” was the transfer document confirming the transfer of C.R 47965 to the 12 th Respondent.
d) The registration of the Properties in favour of the 7 th and 12 th Respondents was completed on 16 th March, 2011, whereupon they took vacant possession of the Properties.
e) The 7 th and 12 th Respondents had been regularly visiting the Properties to ensure they were well maintained and had been paying the land rates at the required times. Annexed and marked as “UA ‑ 5” were copies of the land rates receipts in respect of the Properties.
f) The 7 th and 12 th Respondents vehemently denied the contents of Paragraphs 3, 4 and 5 of the Applicants’ supporting affidavit and categorically stated that the Plaintiffs/Applicants invaded and trespassed on the suit Properties on or around October, 2020.
g) They had therefore barely been there for a few months, let alone the period of 12 years as claimed. The 7 th and 12 th Respondents had at all relevant times been in occupation and possession of the Properties.
h) It was only recently, on or around October, 2020, when the 12 th Respondent’s father, one Ramzan Mohamed, was informed by an acquaintance that some strangers had invaded the Properties and were illegally carrying out construction activities without the consent of the registered owners.
i) The 7 th and 12 th Respondents denied the contents of Paragraph 6 of the Applicants’ supporting affidavit and stated that upon receiving information of strangers commencing construction on their Properties around October, 2020, they immediately sent Ramzan Mohamed to notify the Applicants to vacate the Properties on the basis that they had illegally trespassed.
j) In further response to paragraph 6, and as advised by the 7 th and 12 th Respondents’ advocate on record, the Applicants were claiming adverse possession of the property yet had not met the requirements of establishing such a claim, including but not limited to possession being without permission and being notorious.
k) The 7 th and 12 th Respondents further stated that it was unconscionable that illegal squatters could invade private property and later falsely allege to have stayed thereon for more than 12 years in order to claim it by adverse possession. They termed this outright theft which the law should not condone.
l) None of the orders prayed for ought to be granted as the Plaintiffs/Applicants had barely resided on the suit property and, in fact, from October, 2020 were illegally trespassing upon and erecting structures on the Properties, thereby prejudicing and interfering with the 7 th and 12 th Respondents’ fundamental rights to exclusively enjoy their Properties.
m) The Affiant stated that the application was frivolous, vexatious, and an abuse of the court process. The Applicants were attempting to use the judicial process to illegally and improperly acquire land from innocent bona fide owners.
n) To allow the instant application would set a bad precedent and open floodgate to unscrupulous persons who would run to court to seek similar declarations over land parcels they were not entitled to, leaving bona fide landowners at the mercy of such persons, with far ‑ reaching implications on the sanctity of titles.
o) The 7 th and 12 th Respondents swore the affidavit in opposition to the Originating Summons filed by the Plaintiffs/Applicants and prayed that the suit be dismissed with costs.
36. On 20 th March, 2023 the Defendants called their 1 st witness DW - 1 who told the court that: -
C. Examination in Chief of DW – 1 by M/s. Aliya Advocate.
37. DW - 1 was sworn and testified in English language. She was called RIWAYA RAMZAN MOHAMED, a citizen of Kenya and holder of the national identity card bearing all the particulars as shown to Court during the hearing of the case. She testified having been living at Sakuya Mosque. She stated that the 7 th Respondent, Umi Omar Mohidin Hatimu, was her daughter ‑ in ‑ law, and the 12 th Respondent, Mr. Abdulrauf Ramzan Mohamed Hatimu, was her son. DW - 1 told the court that she converted her replying affidavit into a witness statement and adopted it as her evidence.
38. DW - 1 testified that the 7 th and 12 th Respondents had purchased land from Mr. Hassan Mohamed Saleh Bagha (the 1 st Respondent) and Mr. Hussein Shariff Omar, who were joint owners, at a consideration of approximately sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-). DW - 1 stated that the parcels acquired were Plots No. CR 47977 and CR 47965. After purchase, the plots were transferred to the Respondents and title deeds were issued in their names. DW - 1 produced and admitted annexures as Defendants’ Exhibits 1 to 7, namely:
• Copy of Title No. CR 47977.
• Copy of Title No. CR 47965.
• Copy of Transfer for Plot 47977.
• Copy of Transfer for Plot 47965.
• County Government receipts.
• Sale Agreement dated 14 th November, 2020 between M/s. Riwaya Ramzan Mohamed and Ali Hamisi.
• Copy of the Power of Attorney.
39. The Court was shown the original Power of Attorney. The two title deeds were to be produced at a later stage and were marked as Defendant “MFI 1 & 2”.
40. DW - 1 testified that upon purchasing the land and receiving title, they went to the property and chose a portion where there was a house. The purchase was made in the year 2011, and they had planned to construct a perimeter wall. DW - 1 stated that they had a caretaker on the property until year 2017. She explained that they left the land under the caretaker’s watch, but in the year 2020 they learned that a person had encroached and erected structures. DW - 1 told the court that during this period, Mzee and a tuktuk driver were attacked and hospitalized. The matter was reported to the police.
41. DW - 1 testified that the police visited the site, and Mr. Ali approached them, urging that his structures not be demolished. They offered to sell the land to him at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-), and a sale agreement was documented before an advocate. DW - 1 stated that Mr. Ali signed the agreement freely and was given a copy, but thereafter avoided them by giving excuses of being at the mosque.
42. DW - 1 averred that their advocate advised demolition of the structures, but they declined, describing themselves as peaceful people. Instead, they were sued over the matter. DW - 1 testified that they had been paying rates for the two plots. She stated that the caretaker was manipulated, given money, and disappeared, after which their house was broken into. DW - 1 told the court that they never visited the property again after Mzee was beaten by over 40 people. She emphasized that they owned the land and held valid title deeds, having first learned of the encroachment in the year 2011. DW - 1 concluded by stating that even the police feared being beaten up when dealing with the matter.
B. Cross Examination of DW - 1 by Mr. Mgupu Advocate.
43. DW - 1 testified that she was using the General Power of Attorney to testify in court. She stated that it was dated 9 th February, 2021 and registered on 8 th March, 2021. DW - 1 told the court that she did not know when the Power of Attorney was filed, noting that the case had been filed on 19 th January, 2021, before the Power of Attorney was registered.
44. DW - 1 testified that she had produced a Sale Agreement dated 14 th November, 2020, which was executed before the registration of the Power of Attorney. She stated that she had another Power of Attorney which had not been produced in court. DW - 1 averred that the 7 th Respondent was her daughter ‑ in ‑ law and the 12 th Respondent was her son, and that they had donated the Power of Attorney to her as they were out of the country.
45. DW - 1 told the court that according to the Power of Attorney, both the 7 th and 12 th Respondents were citizens of the United Kingdom. She stated that she was not aware of the relevant provisions of the Constitution regarding this. DW - 1 testified that she could not remember when the two transfers were executed. DW - 1 stated that she had been paying land rates up to 2 nd March, 2021, and emphasized that they used to pay rates regularly, not just after the civil case was filed in court.
46. DW - 1 told the court that from the transfer documents, the consideration was a sum of Kenya Shillings Six Hundred Thousand (Kshs. 600,000/-) for each plot. DW - 1 testified that they had intended to sell the property at a sum of Kenya Shillings Two Million (Kshs. 2,000,000/-) but offered it at a sum of Kenya Shillings One Million Five Hundred Thousand (Kshs. 1,500,000/-). She stated that she could sell the property at any price as it was their property. DW - 1 averred that according to the photographs on the transfer documents, they appeared to be of the same person. DW - 1 told the court that she had no idea how long the 7 th and 12 th Respondents had been away. She stated that it was she and Mzee who had been visiting the plot, including in the year 2020.
47. DW - 1 testified that she visited the land as a parent and recalled visiting it in a particular year. She stated that they had a caretaker, Mr. Omar, but had no proof of payment as his employer. DW - 1 told the court that she did not need a Power of Attorney to act. She stated that she did not have an OB number of the complaint lodged by Mzee regarding the assault. DW - 1 testified that she believed the assault had been arranged, and alleged that Mr. Ali was one of those who organized the attack. DW - 1 stated that she had no proof of any notice to vacate the premises or suit property.
C. Cross examination of DW - 1 by M/s. Kiti Advocate.
48. DW - 1 testified that she went to the property in the year 2011. DW - 1 told the court that at the time, the property was vacant except for a three ‑ bedroom house where a lady resided. DW - 1 stated that the lady was poor and lived there under difficult circumstances.
49. DW - 1 testified that she believed Omar acted as a caretaker and used to live there. DW - 1 averred that Omar was performing caretaker duties for many people. DW - 1 told the court that from the years 2011 to 2020 there was a caretaker on the property.
50. DW - 1 testified that it was only in year 2020 when they discovered that Mr. Ali had started building structures on the land.
D. Re - Examination of DW - 1 by M/s. Aliya Advocate.
51. The witness reiterated that there had been a caretaker on the property from the years 2011 to 2017, after which the caretaker left. DW - 1 told the court that the caretaker had been paid by many people for his services. DW - 1 stated that it was in the year 2020 when she discovered that Mr. Ali had started building on the property and continued with construction.
52. DW - 1 testified that Mr. Ali had agreed to purchase the property for a sum of Kenya Shillings
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