I. Preliminaries
1. The Judgement by this Honourable Court pertains to the civil case instituted by Hesbon Tsuma Malachu and Josephine Ngonyo , the Plaintiffs herein. It was against Nahum Mutali Okwiya , the Defendant herein, by way of a Plaint dated 9 th December, 2016. The suit is premised under the provisions of Sections 24, 25, 26 and 80 of the Land Registration Act, No. 3 of 2012; Sections 13 and 150 of the Land Act, 2012; Section 17 of the Limitation of Actions Act, Cap 22; Section 173(1) of the Evidence Act, Cap. 80 Laws of Kenya; and all other enabling provisions of the law. The Plaintiffs seek recovery and declaration of ownership of land parcel known as Kwale/Mkongani “A”/909, alleged to have been unlawfully claimed by the Defendant despite their long and uninterrupted occupation.
2. Upon service, the Defendant opposed the claim. He filed a Statement of Defence and Counter - Claim dated 15 th May, 2017, amended on 2 nd June, 2017, later re ‑ amended on 24 th January 2024, denying the Plaintiffs’ ownership and asserting co ‑ registration of the suit property together with his late father, Gideon Morell Okwiya. The Defendant alleged trespass and sought mandatory injunctions, demolition of structures, damages for loss of use, or alternatively sale/lease of the land to the Plaintiffs.
3. Subsequently, the Plaintiffs filed Replies to Defence and Counter - Claim dated 14 th November 2022 and 26 th February, 2024, traversing the Defendant’s assertions and maintaining that their rights had crystallized by effluxion of time under the Limitation of Actions Act. The matter therefore proceeded to hearing, supported by oral testimonies and documentary evidence including sale agreements, receipts, adjudication records, and land registry searches.
II. The Description of the Parties
4. The 1 st Plaintiff, Hesbon Tsuma Malachu, is an adult male of sound mind residing in Burani within Kwale County, in the Republic of Kenya. He sued in his personal capacity together with the 2 nd Plaintiff, having lawfully purchased and taken possession of Land Parcel Kwale/Mkongani “A”/909. He brought this suit to safeguard his proprietary rights over the said parcel, which he alleged had been unlawfully claimed by the Defendant. His locus standi was anchored in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which vest him with the right to institute proceedings for recovery and protection of property acquired and occupied for over two decades.
5. The 2 nd Plaintiff, Josephine Ngonyo, is an adult female of sound mind residing in Burani within Kwale County, in the Republic of Kenya. She was the wife of the 1 st Plaintiff and a teacher by profession. She sued jointly with the 1 st Plaintiff, having witnessed and participated in the purchase of the suit property from the late Mathias Ibrahim Mlamba on 18 th December, 2002. She had since lived on the land, established a permanent home, and contributed to the development of a church and a primary school thereon. Her claim is similarly grounded in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which recognize her proprietary interest and occupation.
6. The Defendant, Nahum Mutali Okwiya, is an adult male of sound mind residing in Kwale County, in the Republic of Kenya. He was sued as the person who, together with his late father Gideon Morell Okwiya, was registered as co ‑ proprietor of the suit property on 29 th August, 2005. The Plaintiffs impugn his registration on the basis that the root of his title was tainted with irregularity and that his rights, if any, have since been extinguished by effluxion of time under Section 17 of the Limitation of Actions Act, Cap 22. He was therefore sued in his personal capacity as the party currently asserting ownership and seeking to evict the Plaintiffs from the suit property
III. Court Directions before Hearing
7. Upon perusal of the Plaint dated 9 th December, 2016, together with the accompanying list of documents and witness statements filed by the Plaintiffs, this Honourable Court directed that the matter be set down for compliance with Order 11 of the Civil Procedure Rules, 2010.
8. On 17 th February, 2025, having confirmed that both the Plaintiffs and the Defendant had complied with the pre ‑ trial directions under Order 11, the Court fixed the matter for full hearing by way of adducing viva voce evidence on 9 th July, 2025. The Plaintiffs’ case was heard on 9 th July, 2025 after which they marked their case closed and thereafter on 13 th October, 2025, the Defendant called his witness and marked his case closed.
IV. The Plaintiff’s Case
9. From the pleadings before Court, the Plaintiffs bought a piece of Land being plot No. KWALE/MKONGANI “A”/909 from one deceased Mathias Ibrahim Mlamba who had bought the same from the Defendant’s father by the name George Okwiya also deceased. George Okwiya sold to Mathias Ibrahim Mlamba and did not procure tittle deed which later Mathias Ibrahim Mlamba sold it to the Plaintiffs still without title and agreement in writing of the said sale. After completion of purchase, the Plaintiffs started development (built a School) as well as procuring the title deed. It was very difficult since the Defendant emerged and claimed that the land was his and that the Plaintiffs should vacate.
10. On time the 2 nd Plaintiff received a threatening message from the Defendant over her mobile phone. Despite numerous talk and production of sale agreement, the Defendant had persisted to threaten the Plaintiffs to vacate. The Defendant action was unlawful, vexatious and unwarranted aimed at depriving the Plaintiffs their rightful enjoyment of their land. Despite demand and notice of intention to sue being issued, the Defendants have failed and/or neglected to make good the Plaintiff's claim. The Plaintiffs have ‘prima facie ’ case with high chances of success.
11. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in Court or in any other Court between the Plaintiffs and the Defendant over the same subject matter. The Plaintiff also admitted the jurisdiction of the Honourable Court.
12. The Plaintiffs prayed for Judgment to be entered against the Defendant for:-
a. Permanent injunctions restraining the Defendant from entering, trespassing and/or claiming plot Number Kwale/Mkongani “A”/909
b. A declaration that the Plaintiffs are the lawful owners of Plot Number Kwale/Mkongani “A”/909.
c. Any other relief this Honourable Court deems fit to grant.
d. Costs of this suit.
13. The Plaintiffs responded to the Re – amended Defence and Defence to Counter - Claim wherein they averred that:-
a) Save for what was expressly admitted, the Plaintiffs denied each and every allegation set out in the Re ‑ Amended Defence and Counter - Claim as if the same were set out verbatim and traversed seriatim.
b) In response to the Re ‑ Amended Defence and Counter - Claim filed herein, the Plaintiffs joined issues raised in the Plaint and reiterated them in reply, save to add as follows:
c) The Plaintiffs averred that the property known as Kwale/Mkongani “A”/909 had been sold to Ibrahim Mathias Mlamba by the Defendant’s father, George Okwiya, without issuance of a title. The Plaintiffs stated that it was not true that the Defendant was the co ‑ registered owner of the said parcel of land.
d) The Plaintiffs further averred that the suit premises had been adjudicated by the Land Adjudication Department, Kwale District, and allocated to Ibrahim Mathias Mlamba on 22 nd September, 1982.
e) The Plaintiffs stated that at all material times, Ibrahim Mathias Mlamba was in actual and legal possession of the said parcel of land.
f) The Plaintiffs testified that on 18 th December, 2002, the said Ibrahim Mathias Mlamba sold the parcel of land to them and handed over possession of the suit premises.
g) The Plaintiffs averred that they had been in possession since then, having rightfully and legally purchased the suit premises from Ibrahim Mathias Mlamba.
h) The Plaintiffs stated that at the time of filing the suit, they had been in possession of the suit premises for over 14 years, and that their rights to the land had crystallized by effluxion of time.
14. On the Defence to the Counter - Claim, the Plaintiffs averred:-
a. The Plaintiffs reiterated the contents hereinabove and, in defence to the counterclaim, further averred as follows:
b. The Plaintiffs stated that the Defendant had lost any claim (if any) to the land, having not been in possession of the suit premises for more than 12 years.
c. The Plaintiffs averred that the Defendant’s claim was time ‑ barred and that the Counter - Claim ought to be struck out with costs.
d. The Plaintiffs referred to the Defendant’s own pleadings in the Counter - Claim, wherein:-
a) The Defendant admitted that he had not consented to the Plaintiffs entering the suit premises.
b) The Defendant acknowledged that the Plaintiffs had been in occupation without disturbance for more than 12 years, and had even constructed structures on the suit premises.
c) The Defendant confirmed that the Plaintiffs had been in continuous, peaceful, and uninterrupted occupation for a period exceeding 12 years
e. The Plaintiffs stated that the Defendant himself confirmed that he had never been in possession of the suit premises.
f. The Plaintiffs averred that from the Defendant’s own admissions, the parcel of land known as Kwale/Mkongani “A”/909 ought to be registered in their names, since any entitlement of the Defendant had long been extinguished under Section 17 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.
15. For the foregoing reasons, the Plaintiffs prayed that the Defendant’s Counter - Claim and Re ‑ Amended Defence be dismissed with costs, and that judgment be entered in favour of the Plaintiffs as prayed in the Plaint.
A. The Opening Remarks by Mr. Chibanda Advocate:-
16. At the commencement of the hearing of the Plaintiff’s case, on 9 th July, 2025, the Counsel for the Plaintiffs had the following opening remarks:-
17. The Counsel commenced by stating that the Plaintiff bought the land in the year 2002. They were bona fide innocent purchaser for value. They executed a Sale Agreement dated 18 th December, 2002 for a consideration of Kenya Shillings Fourty Thousand (Kshs. 40,000/=) and which they paid in full and they were issued with receipt.
18. The Learned Counsel intimated that they would endeavor to produce the evidence and the seller who had no objection; the Defendant was the son to the seller of the land. They had occupied the land and constituted a school and also resided there. The Defendant to be extinguished and title deed be issued to the Plaintiff.
19. The Plaintiffs testified on 9 th July, 2025 at 1.45 am as follows:-
B. Examination in Chief of PW - 1 by Mr. Chibanda Advocate.
20. PW – 1 testified and sworn in Swahili language. He was called HESBON TSUMA MALACHU, a citizen of Kenya holing the national identity card bearing all the details as shown to Court during the hearing of the case. He was a pastor of a church and was aware of the reason he was before the Court. PW - 1 stated that he had recorded a witness statement dated 9 th December, 2016. PW - 1 further testified that he had filed a list of documents dated 26 th February, 2024 and abandoned the earlier list dated 9 th December 2016, producing four documents in support of his case. The Plaintiff Exhibits 1 to 3 produced as MF2 - 4 - Letters of DLASO.
21. PW - 1 testified that after purchasing the land, the parties entered into a Sale Agreement dated 18 th December, 2002, signed by the vendor, Mathias Ibrahim Mlamba, and the purchaser, Hesbon Tsuma Malachu, and witnessed by Elisha Mjumba. PW - 1 averred that the consideration was a sum of Kenya Shillings Fourty Thousand (Kshs. 40,000.00/=), and the agreement was produced as Plaintiff Exhibit No. 1. PW - 1 further stated that the vendor issued him with a receipt dated 18 th December 2002, which was produced as Plaintiff Exhibit Number 2. PW - 1 testified that the seller never gave him a title deed, though the land measured approximately three acres.
22. PW - 1 averred that the vendor requested for time to process the title and promised to call him once it was ready. Unfortunately, this never happened, and the vendor later passed away. In the meantime, PW - 1 testified that he sought permission to take occupation of the land, upon which he constructed houses in the year 2003, a church in the year 2006, and an Early Childhood Development (E.C.D.) school around the same period.
23. PW - 1 further stated that after the death of the vendor, he undertook a search at the Lands Registry to pursue issuance of a title deed. He testified that the particulars of the land obtained from the search were different from what he had expected. PW - 1 urged the Court to grant him title to the land where he had lived continuously for twenty ‑ three years.
C. Cross ‑ Examination of PW - 1 by Mr. Lijoodi Advocate.
24. PW - 1 testified that he purchased the plot on 18 th December, 2002 from Mathias Ibrahim Mlamba, who prepared the Sale Agreement. PW - 1 stated that his witness was Elisha Mjomba, while M/s. Josephine Ngonyo, his wife at the time, also signed as a witness. PW - 1 clarified that the vendor’s witness was Elisha Mjomba, who acted as caretaker of the land. PW - 1 admitted that M/s. Ngonyo’s signature was appended later on 17 th February, 2003, and not on the material date of 18 th December, 2002 when the agreement was executed. PW - 1 further testified that he did not conduct an official search before purchasing the land.
25. PW - 1 was referred to the Certificate of Title for Kwale/Mkongani “A”/909, registered in the names of Gideon Morell Okwiya (ID No. 74300) and Nahum Mutali Okwiya (ID No. 13358927), dated 29 th August, 2005, which was produced as the Defendant’s exhibit. PW - 1 was also referred to a Sale Agreement dated 8 th August, 1979 contained in the Defendant’s documents, bearing the names of Tsuma Mweta Maradi and Gideon Morell Okwiya.
26. PW - 1 testified that for the construction of his house, he only sought approval from the Chief and not the County Council, and the same applied to the church. PW - 1 stated that he met Gideon Morell Okwiya, who indicated that the land was in the names of his son. PW - 1 confirmed that he was never chased away or evicted from the land.
27. PW - 1 testified that he filed the present suit in the year 2016 under a Certificate of Urgency, while the construction of the school commenced in the year 2006. He explained that the reason for filing the suit after ten (10) years was to secure registration for the school. PW - 1 admitted that he had never been evicted nor threatened. He further clarified that from the pleadings, he had not specifically stated the period of occupation on the land, attributing the omission to a typographical error.
28. PW - 1 finally stated that when he acquired the land, he had not obtained consent from either the vendor or the registered owner of the land. He added that he had been following up with the vendor to retrieve the relevant file for purposes of documentation.
D. Re ‑ Examination of PW - 1 by Mr. Chibanda Advocate.
29. PW - 1 testified that Mr. Elisha Mjomba was the witness for both parties to the Sale Agreement, and that he acted as caretaker for the Vendor. PW - 1 clarified that Josephine Ngonyo did not sign the Sale Agreement on the material date as she was unwell and that explained why her signature was appended later. PW - 1 was referred to the title deed issued on 29 th August, 2005, with the date of entry recorded as 16 th August, 1989. PW - 1 stated that he constructed permanent structures on the land in 2006, including a house. He testified that a stranger later came onto the land, which prompted him to conduct a search at the Lands Registry.
30. PW - 1 averred that despite efforts, he was unable to trace the said person, and consequently filed the present suit in year 2016. He explained that in the intervening period he had been pursuing issuance of a title deed. PW - 1 further stated that he approached the Court under a Certificate of Urgency in order to justify and obtain registration of the school established on the suit property.
31. On the same day the Plaintiff called her second witness PW - 2 who testified as follows:-
A. Examination in Chief of PW - 2 by Mr. Chibanda Advocate.
32. PW - 2 was sworn and in Swahili language. She was called JOSEPHINE KABUNDA NGONYO, a citizen of Kenya with the national identity card bearing all the details as shown to Court during the hearing session. She resided in Nkuranya and was a primary school teacher by profession. PW - 2 testified that she had filed a witness statement dated 26 th February, 2024, which she wished to adopt as her evidence ‑ in ‑ chief. PW - 2 urged the Court to declare the suit land as belonging to her and her husband, stating that they had jointly purchased it. PW - 2 was referred to the Sale Agreement dated 18 th December, 2002 and confirmed that she signed it as a witness on 17 th February, 2003, explaining that she had been unwell on the material date of execution and therefore could not sign at the same time as the other parties.
B. Cross ‑ Examination of PW - 2 by Mr. Lijoodi Advocate.
33. PW - 2 testified that when she and her husband purchased the land on 18 th December, 2002, they immediately took possession of the same. PW - 2 clarified that the reference to “transfer” in her witness statement was a typographical error, and that it was intended to read “Sale Agreement” instead. PW - 2 further stated that as a co ‑ Plaintiff in the case, she had never signed any authority for the 1 st Plaintiff to plead on her behalf. She explained that, for instance, the Plaintiff’s Replying Affidavit did not bear her signature, nor did the Notice of Motion application dated 9 th December, 2016. PW - 2 added that the Supporting Affidavit similarly did not bear her name and was not executed against the Sale Agreement.
34. PW - 2 testified that she had requested approval for the construction of the school and was granted verbal approval. With respect to the church, PW2 stated that her husband, being a priest, had obtained approval for its establishment.
C. Re ‑ Examination of PW - 2 by Mr. Chibanda Advocate.
35. PW - 2 testified that the 1 st Plaintiff was her husband.
36. The Plaintiffs called PW - 3 who testified as follows:
B. Examination in Chief of PW - 3 by Mr. Chibanda Advocate.
37. PW - 3 was sworn and testified in Swahili language. He was called MWANGOME ELISHA MJOMBA, a citizen of Kenya with the national identity card with all the particulars shown to Court during the hearing session. He was the caretaker of the suit property at the material time and acted as a witness to the Sale Agreement between the Plaintiffs and the vendor, Mathias Ibrahim Mlamba. PW - 3 testified that he signed a witness statement dated 26 th November, 2024, which he adopted as part of his evidence ‑ in ‑ chief. PW - 3 confirmed that he was present during the execution of the Sale Agreement and appended his signature as a witness thereto.
B. Cross ‑ Examination of PW - 3 by Mr. Lijoodi Advocate.
38. PW - 3 testified that he was a neighbour to the suit property. PW - 3 was referred to the Sale Agreement dated 8 th August, 1979 produced by the Defendant, and he stated that the parties at the time were neighbours, namely Tsuma Mweta Maradi and Gideon Morell Okwiya.
39. PW - 3 further testified that Okwiya later sold the land to Mathias Ibrahim Mlamba, who was the vendor to the Plaintiffs. PW - 3 stated that Mathias showed him certain documents to demonstrate that he was the owner of the land. PW - 3 confirmed that in respect of the Sale Agreement dated 18 th December, 2002, he was the only witness present, as the wife of Hesbon Tsuma Malachu was unwell on the material date. PW - 3 testified that he had never met Nahum Mutali Okwiya personally.
40. PW - 3 stated that he had never heard of any land dispute until the year 2016, when people came claiming ownership of the property.
C. Re ‑ Examination of PW - 3 by Mr. Chibanda Advocate.
41. PW - 3 reiterated that he was never involved in the making of the sale agreement. He was a witness for both the vendor and purchaser.
42. The Plaintiff called PW - 4 on 13 th October, 2025 who testified that:-
C. Examination in Chief of PW - 4 by Mr. Chibanda Advocate.
43. PW - 4 was sworn and testified in English language. He was identified as JOHN MWANGI KARANJA, a citizen of Kenya a holder of the national identity card bearing all the particulars as shown to Court during the hearing. He was the Divisional Land Adjudication and Settlement Officer (DLASO) and also served as Assistant Director, Land Adjudication and Settlement Officer, under PF No. 2006048080 issued on 27 th December, 2022. PW - 4 testified that he was in Court pursuant to a summons requiring him to give evidence in respect of Land Parcel Kwale/Mkongani “A”/909. PW - 4 stated that he had produced two ( 2 ) documents, namely:
a. The Demarcation Book; and
b. The Adjudication Record.
44. PW - 4 explained that according to the Demarcation Book, the land was demarcated on 17 th April, 1978, and the recorded owners were two individuals, namely Mr. Gideon Morell Okwiya and Abraham Motall Okwiya. PW - 4 testified that the interest was recorded as common ownership, with each individual holding half and divided shares. PW - 4 further stated that the two recorded owners had purchased the land from Tsuma Mweta Maradi, holder of Identification Card No. 4634344/67. PW - 4 explained that it was from the Demarcation Book that the Adjudication Record was prepared.
45. PW - 4 testified that the Adjudication Record indicated that the land measured 1.2 hectares, and it was clearly shown therein that the land moved from Tsuma Mweta Maradi, whose name was cancelled, to the two persons, namely Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 stated that this was all he could say about the parcel of land. PW - 4 further testified that the Adjudication Record was prepared on 8 th March, 1980 and signed by the Execution Officer. He added that he joined the office in the year 2006, and confirmed that the record was duly prepared and executed.
B. Cross ‑ Examination of PW - 4 by Mr. Lijoodi Advocate.
46. PW - 4 testified that he came to Court to give evidence on Land Parcel Kwale/Mkongani “A”/909, and that he had brought with him documents relating to the registration of the land. PW - 4 explained that the effect of these documents was to prepare the registration of ownership of land, which in essence were taken to the Land Registrar for issuance of title. PW - 4 clarified that if there were no names or corrections on the records, no one could transact on the land.
47. PW - 4 stated that from the records, the name of Mathias Ibrahim Mlamba did not appear, and there was no agreement between Mr. Mlamba and Gideon Morell Okwiya. PW - 4 was referred to the Sale Agreement dated 8 th August, 1979, where the parties were Tsuma Mweta Maradi and Gideon Morell Okwiya, and confirmed that the agreement was executed before the adjudication record was prepared.
48. PW - 4 was further referred to the title deed dated 29 th August, 2005, which was registered in the names of Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 confirmed that the Demarcation Record was produced as Defence Exhibit Number 3, with an entry dated 13 th April, 1978, and the Adjudication Record was produced as Defence Exhibit Number 4.
49. The Plaintiffs marked their case closed on 13 th October, 2025 by its counsel on record Mr. Chibanda Advocate.
V. The case of the Defendant
50. The Defendant responded the Plaintiffs’ claim through a re – Amended Statement of Defence and Counter - Claim in the following terms: -
a) Save for what was expressly admitted, the Defendant denied the contents of the Plaint as if the same were set out verbatim and denied seriatim.
b) The Defendant admitted the contents of Paragraphs 1 and 2 of the Plaint as being mainly descriptive of the parties, save that his address for the purposes of the suit.
c) In reply to Paragraph 3 of the Plaint, the Defendant denied the contents thereof and stated that there existed no privity of contract between the Plaintiffs and himself, and the Plaintiffs were put to strict proof thereof.
d) The Defendant further stated that he was a stranger to any alleged sale between the Plaintiffs and the late Mathias Ibrahim Mlamba, and the Plaintiffs were put to strict proof thereof.
e) In response to Paragraphs 4, 5 and 7 of the Plaint, the Defendant denied having sold the suit plot to any person or to any other registered owners, and put the Plaintiffs to strict proof thereof.
f) The Defendant denied the allegations contained in Paragraphs 6 and 7 of the Plaint in toto and put the Plaintiffs to strict proof thereof.
g) The Defendant denied Paragraph 8 of the Plaint and reiterated that he was the co ‑ registered owner of the suit plot, putting the Plaintiffs to strict proof of the allegations contained therein.
h) The Defendant averred that he was the co ‑ registered owner of Plot No. Kwale/Mkongani “A”/909 ‑ 109.
i) The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent.
j) The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval.
k) The Defendant averred that due to the Plaintiffs’ acts of trespass, he had suffered loss and damage since the year 2003 to date.
l) The Defendant relied on the following particulars of loss and Damage:-
a. Illegal construction of structures on the suit plot.
b. Illegal acquisition of the suit plot by unlawful retention on the part of the Plaintiffs
m) The Defendant stated that the Plaintiffs’ suit was bad in law and fatally defective, and that he would raise a Preliminary Objection on a point of law to that effect at the hearing, seeking to have the suit struck out.
n) The Defendant denied the contents of Paragraph 9 of the Plaint and stated that there had been no demand or notice of intention to sue, rendering the suit premature and a non ‑ starter.
o) The Defendant admitted Paragraph 11 of the Plaint.
p) The Defendant admitted the jurisdiction of the Honourable Court.
51. The Defendant in his Counter - Claim averred that:-
a) The Defendant reiterated the contents of the entire Amended Statement of Defence as if the same were set out verbatim herein.
b) The Defendant averred that he was the co ‑ registered owner of Plot No. Kwale/Mkongani “A”/909 ‑ 109, which had been acquired by his late father, Gideon Morell Okwiya, in the year 1979 from the initial owner, Tsuma Mweta Maradi, and thereafter registered in the names of Gideon Morell Okwiya and the Defendant.
c) The Defendant stated that he had never entered into any transaction of sale over the subject property with any other person.
d) The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent.
e) The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval. The Defendant stated that as a result of the invasion by the Plaintiffs, he had suffered massive damages.
f) The Defendant relied on the following particulars of loss and damage:-
a. Total loss of use of the land from the year 2003 to date.
b. Further to the above, the Defendant had suffered stress and anguish over the aforesaid losses and the Defendant claims for damages.
52. The Defendant prayed that the Plaintiffs’ suit be struck out with costs to the Defendant for Judgment to be entered against the Plaintiffs for:-
a. An Order of mandatory injunction to compel the Plaintiffs, their relatives, servants and/or agents or any other persons under instructions of the Plaintiffs and to give vacant possession of the property known as KWALE/MKONGANI "A"/ 909-109 to demolish all the illegal structures constructed thereon and to remove all the materials failing which the structures be demolished and removed at their cost.
b. An order of Permanent Injunction restraining the persons mentioned in (i) above from trespassing upon and/or in any way dealing and/or interfering with the suit property.
c. General damages for loss of use of land from the year 2003 to date and interests at prevailing court rates.
d. Costs of this suit and interests at courts rates
e. In the alternative:-
i) The Defendant to sell the suit premises to the Plaintiffs at market rates but inclusive of agreed mesne profits.
ii) The Defendant, if need arises, to offer a lease agreement of the suit premises to the Plaintiff's at agreed sums to be agreed upon by parties
53. The Defendant’s counsel had the following remarks to make:-
D. Opening remarks by the Counsel to the Defendant, Mr. Lijoodi Advocate.
54. At the beginning of the Defence case, the Learned Counsel for the Defendant submitted that the Defendant was the legal registered owner of the suit land. It was his contention that he acquired it having succeeded to it upon the death of his father in the year 2012.
55. The Learned Counsel stated that the Plaintiffs were mere squatters who commenced construction of structures on the land after the Defendant’s father had refused to sell
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1. The Judgement by this Honourable Court pertains to the civil case instituted by Hesbon Tsuma Malachu and Josephine Ngonyo , the Plaintiffs herein. It was against Nahum Mutali Okwiya , the Defendant herein, by way of a Plaint dated 9 th December, 2016. The suit is premised under the provisions of Sections 24, 25, 26 and 80 of the Land Registration Act, No. 3 of 2012; Sections 13 and 150 of the Land Act, 2012; Section 17 of the Limitation of Actions Act, Cap 22; Section 173(1) of the Evidence Act, Cap. 80 Laws of Kenya; and all other enabling provisions of the law. The Plaintiffs seek recovery and declaration of ownership of land parcel known as Kwale/Mkongani “A”/909, alleged to have been unlawfully claimed by the Defendant despite their long and uninterrupted occupation.
2. Upon service, the Defendant opposed the claim. He filed a Statement of Defence and Counter - Claim dated 15 th May, 2017, amended on 2 nd June, 2017, later re ‑ amended on 24 th January 2024, denying the Plaintiffs’ ownership and asserting co ‑ registration of the suit property together with his late father, Gideon Morell Okwiya. The Defendant alleged trespass and sought mandatory injunctions, demolition of structures, damages for loss of use, or alternatively sale/lease of the land to the Plaintiffs.
3. Subsequently, the Plaintiffs filed Replies to Defence and Counter - Claim dated 14 th November 2022 and 26 th February, 2024, traversing the Defendant’s assertions and maintaining that their rights had crystallized by effluxion of time under the Limitation of Actions Act. The matter therefore proceeded to hearing, supported by oral testimonies and documentary evidence including sale agreements, receipts, adjudication records, and land registry searches.
II. The Description of the Parties
4. The 1 st Plaintiff, Hesbon Tsuma Malachu, is an adult male of sound mind residing in Burani within Kwale County, in the Republic of Kenya. He sued in his personal capacity together with the 2 nd Plaintiff, having lawfully purchased and taken possession of Land Parcel Kwale/Mkongani “A”/909. He brought this suit to safeguard his proprietary rights over the said parcel, which he alleged had been unlawfully claimed by the Defendant. His locus standi was anchored in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which vest him with the right to institute proceedings for recovery and protection of property acquired and occupied for over two decades.
5. The 2 nd Plaintiff, Josephine Ngonyo, is an adult female of sound mind residing in Burani within Kwale County, in the Republic of Kenya. She was the wife of the 1 st Plaintiff and a teacher by profession. She sued jointly with the 1 st Plaintiff, having witnessed and participated in the purchase of the suit property from the late Mathias Ibrahim Mlamba on 18 th December, 2002. She had since lived on the land, established a permanent home, and contributed to the development of a church and a primary school thereon. Her claim is similarly grounded in the Land Registration Act, No. 3 of 2012, and the Limitation of Actions Act, Cap. 22, which recognize her proprietary interest and occupation.
6. The Defendant, Nahum Mutali Okwiya, is an adult male of sound mind residing in Kwale County, in the Republic of Kenya. He was sued as the person who, together with his late father Gideon Morell Okwiya, was registered as co ‑ proprietor of the suit property on 29 th August, 2005. The Plaintiffs impugn his registration on the basis that the root of his title was tainted with irregularity and that his rights, if any, have since been extinguished by effluxion of time under Section 17 of the Limitation of Actions Act, Cap 22. He was therefore sued in his personal capacity as the party currently asserting ownership and seeking to evict the Plaintiffs from the suit property
III. Court Directions before Hearing
7. Upon perusal of the Plaint dated 9 th December, 2016, together with the accompanying list of documents and witness statements filed by the Plaintiffs, this Honourable Court directed that the matter be set down for compliance with Order 11 of the Civil Procedure Rules, 2010.
8. On 17 th February, 2025, having confirmed that both the Plaintiffs and the Defendant had complied with the pre ‑ trial directions under Order 11, the Court fixed the matter for full hearing by way of adducing viva voce evidence on 9 th July, 2025. The Plaintiffs’ case was heard on 9 th July, 2025 after which they marked their case closed and thereafter on 13 th October, 2025, the Defendant called his witness and marked his case closed.
IV. The Plaintiff’s Case
9. From the pleadings before Court, the Plaintiffs bought a piece of Land being plot No. KWALE/MKONGANI “A”/909 from one deceased Mathias Ibrahim Mlamba who had bought the same from the Defendant’s father by the name George Okwiya also deceased. George Okwiya sold to Mathias Ibrahim Mlamba and did not procure tittle deed which later Mathias Ibrahim Mlamba sold it to the Plaintiffs still without title and agreement in writing of the said sale. After completion of purchase, the Plaintiffs started development (built a School) as well as procuring the title deed. It was very difficult since the Defendant emerged and claimed that the land was his and that the Plaintiffs should vacate.
10. On time the 2 nd Plaintiff received a threatening message from the Defendant over her mobile phone. Despite numerous talk and production of sale agreement, the Defendant had persisted to threaten the Plaintiffs to vacate. The Defendant action was unlawful, vexatious and unwarranted aimed at depriving the Plaintiffs their rightful enjoyment of their land. Despite demand and notice of intention to sue being issued, the Defendants have failed and/or neglected to make good the Plaintiff's claim. The Plaintiffs have ‘prima facie ’ case with high chances of success.
11. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in Court or in any other Court between the Plaintiffs and the Defendant over the same subject matter. The Plaintiff also admitted the jurisdiction of the Honourable Court.
12. The Plaintiffs prayed for Judgment to be entered against the Defendant for:-
a. Permanent injunctions restraining the Defendant from entering, trespassing and/or claiming plot Number Kwale/Mkongani “A”/909
b. A declaration that the Plaintiffs are the lawful owners of Plot Number Kwale/Mkongani “A”/909.
c. Any other relief this Honourable Court deems fit to grant.
d. Costs of this suit.
13. The Plaintiffs responded to the Re – amended Defence and Defence to Counter - Claim wherein they averred that:-
a) Save for what was expressly admitted, the Plaintiffs denied each and every allegation set out in the Re ‑ Amended Defence and Counter - Claim as if the same were set out verbatim and traversed seriatim.
b) In response to the Re ‑ Amended Defence and Counter - Claim filed herein, the Plaintiffs joined issues raised in the Plaint and reiterated them in reply, save to add as follows:
c) The Plaintiffs averred that the property known as Kwale/Mkongani “A”/909 had been sold to Ibrahim Mathias Mlamba by the Defendant’s father, George Okwiya, without issuance of a title. The Plaintiffs stated that it was not true that the Defendant was the co ‑ registered owner of the said parcel of land.
d) The Plaintiffs further averred that the suit premises had been adjudicated by the Land Adjudication Department, Kwale District, and allocated to Ibrahim Mathias Mlamba on 22 nd September, 1982.
e) The Plaintiffs stated that at all material times, Ibrahim Mathias Mlamba was in actual and legal possession of the said parcel of land.
f) The Plaintiffs testified that on 18 th December, 2002, the said Ibrahim Mathias Mlamba sold the parcel of land to them and handed over possession of the suit premises.
g) The Plaintiffs averred that they had been in possession since then, having rightfully and legally purchased the suit premises from Ibrahim Mathias Mlamba.
h) The Plaintiffs stated that at the time of filing the suit, they had been in possession of the suit premises for over 14 years, and that their rights to the land had crystallized by effluxion of time.
14. On the Defence to the Counter - Claim, the Plaintiffs averred:-
a. The Plaintiffs reiterated the contents hereinabove and, in defence to the counterclaim, further averred as follows:
b. The Plaintiffs stated that the Defendant had lost any claim (if any) to the land, having not been in possession of the suit premises for more than 12 years.
c. The Plaintiffs averred that the Defendant’s claim was time ‑ barred and that the Counter - Claim ought to be struck out with costs.
d. The Plaintiffs referred to the Defendant’s own pleadings in the Counter - Claim, wherein:-
a) The Defendant admitted that he had not consented to the Plaintiffs entering the suit premises.
b) The Defendant acknowledged that the Plaintiffs had been in occupation without disturbance for more than 12 years, and had even constructed structures on the suit premises.
c) The Defendant confirmed that the Plaintiffs had been in continuous, peaceful, and uninterrupted occupation for a period exceeding 12 years
e. The Plaintiffs stated that the Defendant himself confirmed that he had never been in possession of the suit premises.
f. The Plaintiffs averred that from the Defendant’s own admissions, the parcel of land known as Kwale/Mkongani “A”/909 ought to be registered in their names, since any entitlement of the Defendant had long been extinguished under Section 17 of the Limitation of Actions Act, Cap. 22 Laws of Kenya.
15. For the foregoing reasons, the Plaintiffs prayed that the Defendant’s Counter - Claim and Re ‑ Amended Defence be dismissed with costs, and that judgment be entered in favour of the Plaintiffs as prayed in the Plaint.
A. The Opening Remarks by Mr. Chibanda Advocate:-
16. At the commencement of the hearing of the Plaintiff’s case, on 9 th July, 2025, the Counsel for the Plaintiffs had the following opening remarks:-
17. The Counsel commenced by stating that the Plaintiff bought the land in the year 2002. They were bona fide innocent purchaser for value. They executed a Sale Agreement dated 18 th December, 2002 for a consideration of Kenya Shillings Fourty Thousand (Kshs. 40,000/=) and which they paid in full and they were issued with receipt.
18. The Learned Counsel intimated that they would endeavor to produce the evidence and the seller who had no objection; the Defendant was the son to the seller of the land. They had occupied the land and constituted a school and also resided there. The Defendant to be extinguished and title deed be issued to the Plaintiff.
19. The Plaintiffs testified on 9 th July, 2025 at 1.45 am as follows:-
B. Examination in Chief of PW - 1 by Mr. Chibanda Advocate.
20. PW – 1 testified and sworn in Swahili language. He was called HESBON TSUMA MALACHU, a citizen of Kenya holing the national identity card bearing all the details as shown to Court during the hearing of the case. He was a pastor of a church and was aware of the reason he was before the Court. PW - 1 stated that he had recorded a witness statement dated 9 th December, 2016. PW - 1 further testified that he had filed a list of documents dated 26 th February, 2024 and abandoned the earlier list dated 9 th December 2016, producing four documents in support of his case. The Plaintiff Exhibits 1 to 3 produced as MF2 - 4 - Letters of DLASO.
21. PW - 1 testified that after purchasing the land, the parties entered into a Sale Agreement dated 18 th December, 2002, signed by the vendor, Mathias Ibrahim Mlamba, and the purchaser, Hesbon Tsuma Malachu, and witnessed by Elisha Mjumba. PW - 1 averred that the consideration was a sum of Kenya Shillings Fourty Thousand (Kshs. 40,000.00/=), and the agreement was produced as Plaintiff Exhibit No. 1. PW - 1 further stated that the vendor issued him with a receipt dated 18 th December 2002, which was produced as Plaintiff Exhibit Number 2. PW - 1 testified that the seller never gave him a title deed, though the land measured approximately three acres.
22. PW - 1 averred that the vendor requested for time to process the title and promised to call him once it was ready. Unfortunately, this never happened, and the vendor later passed away. In the meantime, PW - 1 testified that he sought permission to take occupation of the land, upon which he constructed houses in the year 2003, a church in the year 2006, and an Early Childhood Development (E.C.D.) school around the same period.
23. PW - 1 further stated that after the death of the vendor, he undertook a search at the Lands Registry to pursue issuance of a title deed. He testified that the particulars of the land obtained from the search were different from what he had expected. PW - 1 urged the Court to grant him title to the land where he had lived continuously for twenty ‑ three years.
C. Cross ‑ Examination of PW - 1 by Mr. Lijoodi Advocate.
24. PW - 1 testified that he purchased the plot on 18 th December, 2002 from Mathias Ibrahim Mlamba, who prepared the Sale Agreement. PW - 1 stated that his witness was Elisha Mjomba, while M/s. Josephine Ngonyo, his wife at the time, also signed as a witness. PW - 1 clarified that the vendor’s witness was Elisha Mjomba, who acted as caretaker of the land. PW - 1 admitted that M/s. Ngonyo’s signature was appended later on 17 th February, 2003, and not on the material date of 18 th December, 2002 when the agreement was executed. PW - 1 further testified that he did not conduct an official search before purchasing the land.
25. PW - 1 was referred to the Certificate of Title for Kwale/Mkongani “A”/909, registered in the names of Gideon Morell Okwiya (ID No. 74300) and Nahum Mutali Okwiya (ID No. 13358927), dated 29 th August, 2005, which was produced as the Defendant’s exhibit. PW - 1 was also referred to a Sale Agreement dated 8 th August, 1979 contained in the Defendant’s documents, bearing the names of Tsuma Mweta Maradi and Gideon Morell Okwiya.
26. PW - 1 testified that for the construction of his house, he only sought approval from the Chief and not the County Council, and the same applied to the church. PW - 1 stated that he met Gideon Morell Okwiya, who indicated that the land was in the names of his son. PW - 1 confirmed that he was never chased away or evicted from the land.
27. PW - 1 testified that he filed the present suit in the year 2016 under a Certificate of Urgency, while the construction of the school commenced in the year 2006. He explained that the reason for filing the suit after ten (10) years was to secure registration for the school. PW - 1 admitted that he had never been evicted nor threatened. He further clarified that from the pleadings, he had not specifically stated the period of occupation on the land, attributing the omission to a typographical error.
28. PW - 1 finally stated that when he acquired the land, he had not obtained consent from either the vendor or the registered owner of the land. He added that he had been following up with the vendor to retrieve the relevant file for purposes of documentation.
D. Re ‑ Examination of PW - 1 by Mr. Chibanda Advocate.
29. PW - 1 testified that Mr. Elisha Mjomba was the witness for both parties to the Sale Agreement, and that he acted as caretaker for the Vendor. PW - 1 clarified that Josephine Ngonyo did not sign the Sale Agreement on the material date as she was unwell and that explained why her signature was appended later. PW - 1 was referred to the title deed issued on 29 th August, 2005, with the date of entry recorded as 16 th August, 1989. PW - 1 stated that he constructed permanent structures on the land in 2006, including a house. He testified that a stranger later came onto the land, which prompted him to conduct a search at the Lands Registry.
30. PW - 1 averred that despite efforts, he was unable to trace the said person, and consequently filed the present suit in year 2016. He explained that in the intervening period he had been pursuing issuance of a title deed. PW - 1 further stated that he approached the Court under a Certificate of Urgency in order to justify and obtain registration of the school established on the suit property.
31. On the same day the Plaintiff called her second witness PW - 2 who testified as follows:-
A. Examination in Chief of PW - 2 by Mr. Chibanda Advocate.
32. PW - 2 was sworn and in Swahili language. She was called JOSEPHINE KABUNDA NGONYO, a citizen of Kenya with the national identity card bearing all the details as shown to Court during the hearing session. She resided in Nkuranya and was a primary school teacher by profession. PW - 2 testified that she had filed a witness statement dated 26 th February, 2024, which she wished to adopt as her evidence ‑ in ‑ chief. PW - 2 urged the Court to declare the suit land as belonging to her and her husband, stating that they had jointly purchased it. PW - 2 was referred to the Sale Agreement dated 18 th December, 2002 and confirmed that she signed it as a witness on 17 th February, 2003, explaining that she had been unwell on the material date of execution and therefore could not sign at the same time as the other parties.
B. Cross ‑ Examination of PW - 2 by Mr. Lijoodi Advocate.
33. PW - 2 testified that when she and her husband purchased the land on 18 th December, 2002, they immediately took possession of the same. PW - 2 clarified that the reference to “transfer” in her witness statement was a typographical error, and that it was intended to read “Sale Agreement” instead. PW - 2 further stated that as a co ‑ Plaintiff in the case, she had never signed any authority for the 1 st Plaintiff to plead on her behalf. She explained that, for instance, the Plaintiff’s Replying Affidavit did not bear her signature, nor did the Notice of Motion application dated 9 th December, 2016. PW - 2 added that the Supporting Affidavit similarly did not bear her name and was not executed against the Sale Agreement.
34. PW - 2 testified that she had requested approval for the construction of the school and was granted verbal approval. With respect to the church, PW2 stated that her husband, being a priest, had obtained approval for its establishment.
C. Re ‑ Examination of PW - 2 by Mr. Chibanda Advocate.
35. PW - 2 testified that the 1 st Plaintiff was her husband.
36. The Plaintiffs called PW - 3 who testified as follows:
B. Examination in Chief of PW - 3 by Mr. Chibanda Advocate.
37. PW - 3 was sworn and testified in Swahili language. He was called MWANGOME ELISHA MJOMBA, a citizen of Kenya with the national identity card with all the particulars shown to Court during the hearing session. He was the caretaker of the suit property at the material time and acted as a witness to the Sale Agreement between the Plaintiffs and the vendor, Mathias Ibrahim Mlamba. PW - 3 testified that he signed a witness statement dated 26 th November, 2024, which he adopted as part of his evidence ‑ in ‑ chief. PW - 3 confirmed that he was present during the execution of the Sale Agreement and appended his signature as a witness thereto.
B. Cross ‑ Examination of PW - 3 by Mr. Lijoodi Advocate.
38. PW - 3 testified that he was a neighbour to the suit property. PW - 3 was referred to the Sale Agreement dated 8 th August, 1979 produced by the Defendant, and he stated that the parties at the time were neighbours, namely Tsuma Mweta Maradi and Gideon Morell Okwiya.
39. PW - 3 further testified that Okwiya later sold the land to Mathias Ibrahim Mlamba, who was the vendor to the Plaintiffs. PW - 3 stated that Mathias showed him certain documents to demonstrate that he was the owner of the land. PW - 3 confirmed that in respect of the Sale Agreement dated 18 th December, 2002, he was the only witness present, as the wife of Hesbon Tsuma Malachu was unwell on the material date. PW - 3 testified that he had never met Nahum Mutali Okwiya personally.
40. PW - 3 stated that he had never heard of any land dispute until the year 2016, when people came claiming ownership of the property.
C. Re ‑ Examination of PW - 3 by Mr. Chibanda Advocate.
41. PW - 3 reiterated that he was never involved in the making of the sale agreement. He was a witness for both the vendor and purchaser.
42. The Plaintiff called PW - 4 on 13 th October, 2025 who testified that:-
C. Examination in Chief of PW - 4 by Mr. Chibanda Advocate.
43. PW - 4 was sworn and testified in English language. He was identified as JOHN MWANGI KARANJA, a citizen of Kenya a holder of the national identity card bearing all the particulars as shown to Court during the hearing. He was the Divisional Land Adjudication and Settlement Officer (DLASO) and also served as Assistant Director, Land Adjudication and Settlement Officer, under PF No. 2006048080 issued on 27 th December, 2022. PW - 4 testified that he was in Court pursuant to a summons requiring him to give evidence in respect of Land Parcel Kwale/Mkongani “A”/909. PW - 4 stated that he had produced two ( 2 ) documents, namely:
a. The Demarcation Book; and
b. The Adjudication Record.
44. PW - 4 explained that according to the Demarcation Book, the land was demarcated on 17 th April, 1978, and the recorded owners were two individuals, namely Mr. Gideon Morell Okwiya and Abraham Motall Okwiya. PW - 4 testified that the interest was recorded as common ownership, with each individual holding half and divided shares. PW - 4 further stated that the two recorded owners had purchased the land from Tsuma Mweta Maradi, holder of Identification Card No. 4634344/67. PW - 4 explained that it was from the Demarcation Book that the Adjudication Record was prepared.
45. PW - 4 testified that the Adjudication Record indicated that the land measured 1.2 hectares, and it was clearly shown therein that the land moved from Tsuma Mweta Maradi, whose name was cancelled, to the two persons, namely Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 stated that this was all he could say about the parcel of land. PW - 4 further testified that the Adjudication Record was prepared on 8 th March, 1980 and signed by the Execution Officer. He added that he joined the office in the year 2006, and confirmed that the record was duly prepared and executed.
B. Cross ‑ Examination of PW - 4 by Mr. Lijoodi Advocate.
46. PW - 4 testified that he came to Court to give evidence on Land Parcel Kwale/Mkongani “A”/909, and that he had brought with him documents relating to the registration of the land. PW - 4 explained that the effect of these documents was to prepare the registration of ownership of land, which in essence were taken to the Land Registrar for issuance of title. PW - 4 clarified that if there were no names or corrections on the records, no one could transact on the land.
47. PW - 4 stated that from the records, the name of Mathias Ibrahim Mlamba did not appear, and there was no agreement between Mr. Mlamba and Gideon Morell Okwiya. PW - 4 was referred to the Sale Agreement dated 8 th August, 1979, where the parties were Tsuma Mweta Maradi and Gideon Morell Okwiya, and confirmed that the agreement was executed before the adjudication record was prepared.
48. PW - 4 was further referred to the title deed dated 29 th August, 2005, which was registered in the names of Gideon Morell Okwiya and Nahum Mutahi Okwiya. PW - 4 confirmed that the Demarcation Record was produced as Defence Exhibit Number 3, with an entry dated 13 th April, 1978, and the Adjudication Record was produced as Defence Exhibit Number 4.
49. The Plaintiffs marked their case closed on 13 th October, 2025 by its counsel on record Mr. Chibanda Advocate.
V. The case of the Defendant
50. The Defendant responded the Plaintiffs’ claim through a re – Amended Statement of Defence and Counter - Claim in the following terms: -
a) Save for what was expressly admitted, the Defendant denied the contents of the Plaint as if the same were set out verbatim and denied seriatim.
b) The Defendant admitted the contents of Paragraphs 1 and 2 of the Plaint as being mainly descriptive of the parties, save that his address for the purposes of the suit.
c) In reply to Paragraph 3 of the Plaint, the Defendant denied the contents thereof and stated that there existed no privity of contract between the Plaintiffs and himself, and the Plaintiffs were put to strict proof thereof.
d) The Defendant further stated that he was a stranger to any alleged sale between the Plaintiffs and the late Mathias Ibrahim Mlamba, and the Plaintiffs were put to strict proof thereof.
e) In response to Paragraphs 4, 5 and 7 of the Plaint, the Defendant denied having sold the suit plot to any person or to any other registered owners, and put the Plaintiffs to strict proof thereof.
f) The Defendant denied the allegations contained in Paragraphs 6 and 7 of the Plaint in toto and put the Plaintiffs to strict proof thereof.
g) The Defendant denied Paragraph 8 of the Plaint and reiterated that he was the co ‑ registered owner of the suit plot, putting the Plaintiffs to strict proof of the allegations contained therein.
h) The Defendant averred that he was the co ‑ registered owner of Plot No. Kwale/Mkongani “A”/909 ‑ 109.
i) The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent.
j) The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval.
k) The Defendant averred that due to the Plaintiffs’ acts of trespass, he had suffered loss and damage since the year 2003 to date.
l) The Defendant relied on the following particulars of loss and Damage:-
a. Illegal construction of structures on the suit plot.
b. Illegal acquisition of the suit plot by unlawful retention on the part of the Plaintiffs
m) The Defendant stated that the Plaintiffs’ suit was bad in law and fatally defective, and that he would raise a Preliminary Objection on a point of law to that effect at the hearing, seeking to have the suit struck out.
n) The Defendant denied the contents of Paragraph 9 of the Plaint and stated that there had been no demand or notice of intention to sue, rendering the suit premature and a non ‑ starter.
o) The Defendant admitted Paragraph 11 of the Plaint.
p) The Defendant admitted the jurisdiction of the Honourable Court.
51. The Defendant in his Counter - Claim averred that:-
a) The Defendant reiterated the contents of the entire Amended Statement of Defence as if the same were set out verbatim herein.
b) The Defendant averred that he was the co ‑ registered owner of Plot No. Kwale/Mkongani “A”/909 ‑ 109, which had been acquired by his late father, Gideon Morell Okwiya, in the year 1979 from the initial owner, Tsuma Mweta Maradi, and thereafter registered in the names of Gideon Morell Okwiya and the Defendant.
c) The Defendant stated that he had never entered into any transaction of sale over the subject property with any other person.
d) The Defendant averred that the Plaintiffs were trespassers on the suit property and had developed illegal structures without his consent.
e) The Defendant further averred that on numerous occasions he had asked the Plaintiffs to vacate the suit premises, but they had continued to trespass without his permission or approval. The Defendant stated that as a result of the invasion by the Plaintiffs, he had suffered massive damages.
f) The Defendant relied on the following particulars of loss and damage:-
a. Total loss of use of the land from the year 2003 to date.
b. Further to the above, the Defendant had suffered stress and anguish over the aforesaid losses and the Defendant claims for damages.
52. The Defendant prayed that the Plaintiffs’ suit be struck out with costs to the Defendant for Judgment to be entered against the Plaintiffs for:-
a. An Order of mandatory injunction to compel the Plaintiffs, their relatives, servants and/or agents or any other persons under instructions of the Plaintiffs and to give vacant possession of the property known as KWALE/MKONGANI "A"/ 909-109 to demolish all the illegal structures constructed thereon and to remove all the materials failing which the structures be demolished and removed at their cost.
b. An order of Permanent Injunction restraining the persons mentioned in (i) above from trespassing upon and/or in any way dealing and/or interfering with the suit property.
c. General damages for loss of use of land from the year 2003 to date and interests at prevailing court rates.
d. Costs of this suit and interests at courts rates
e. In the alternative:-
i) The Defendant to sell the suit premises to the Plaintiffs at market rates but inclusive of agreed mesne profits.
ii) The Defendant, if need arises, to offer a lease agreement of the suit premises to the Plaintiff's at agreed sums to be agreed upon by parties
53. The Defendant’s counsel had the following remarks to make:-
D. Opening remarks by the Counsel to the Defendant, Mr. Lijoodi Advocate.
54. At the beginning of the Defence case, the Learned Counsel for the Defendant submitted that the Defendant was the legal registered owner of the suit land. It was his contention that he acquired it having succeeded to it upon the death of his father in the year 2012.
55. The Learned Counsel stated that the Plaintiffs were mere squatters who commenced construction of structures on the land after the Defendant’s father had refused to sell
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