1. The Plaintiff herein commenced this suit by way of Originating Summons (the present OS) dated 31 st August, 2024 inviting the court to determine the following issues: -
(1) WHETHER the Plaintiff has been in open, quiet and notorious possession of an area measuring 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 in the names of JACKSON OMONDI OLOO for a period exceeding 12 years required in Law for acquisition of land by way of adverse possession.
(2) WHETHER the Defendant’s entitlement and title to a portion measuring 0.8Ha out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889(HA) has become extinguished upon expiry of 12 years from the time the Plaintiff acquired the same in the year 1994.
(3) WHETHER the Plaintiff is entitled to the title of a portion measuring 0.8 Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 by virtue of adverse possession since she has occupied the same for a period running over 71 years without interruption.
(4) WHETHER the Plaintiff has acquired the title to the said portion of land measuring 0.8 Ha (2 Acres) out of the said land by virtue of adverse possession and whether such title shall be issued for the portion he possesses.
(5) WHO should pay the costs of this application?
2. The Plaintiff specifically seeks for the following orders:
A. THAT the Defendant’s right over 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/ 1161 (6.0HA) now divided to create plot No. 3889 as has been possessed by the Plaintiff for over 12 years is extinguished by adverse possession from the time Plaintiff acquired the same.
B. THAT the Plaintiff do and is hereby granted right of TITLE to an area measuring 0.8 HA (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889.
C. THAT this Honourable Court either reverts the subdivided titles 3888 & 3889 to the original suit land SOUTH UGENYA/YIRO/1161 for proper distribution to the Plaintiff or alternatively orders the Land Registrar Ugenya Sub- County to transfer the title SOUTH UGENYA/YIRO/3839 directly to the Plaintiff.
D. THAT an ORDER of permanent injunction be and is hereby issued against the Defendants permanently restraining them either by themselves, relatives, servants, workers, agents and/or any other persons claiming through them from interfering with the defined portion of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 which the Plaintiff is claiming.
E. THAT this Honourable Court do issue further ORDERS it may deem just and expedient.
F. THAT the cost of this suit be provided for by the Defendants.
3. The Plaintiff swore an Affidavit dated 31 st August, 2024 in support of the Originating Summons. The Plaintiff’s case is that the parcel of land known as LR. No. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 (suit property) was prior to this suit registered in the name of Wando Rawayo, the 1 st and 2 nd Defendants’ grandfather. The Plaintiff averred that she had no parcel of land prior to the land adjudication exercise in 1971. The Plaintiff however claims that she was born and raised in the suit property in 1953, before the adjudication exercise of 1971.
4. The Plaintiff claims that she was 18 years old at the time of adjudication, but the Defendants’ grandfather Wando Rawayo secretly registered his name as the proprietor of the whole suit land without involving her. That she has been on the land for over 12 years, and had by the year 1983, acquired the same by way of adverse possession. She avers that on 4 th January, 1990 the 1 st and 2 nd Defendants’ father, one Cephania Rawayo Wando, secretly and without the Plaintiff’s knowledge, secretly substituted the names of Wando Rawayo. That he further sub-divided it into 1674 and 1675 and owned the same until his demise.
5. The Plaintiff avers that on 26 th June, 2023 the 1 st and 2 nd Defendants substituted their deceased father on the title without consulting her, despite knowing that she had interests on the land. She alleged that the 1 st and 2 nd Defendants have since subdivided the portion she occupies with her family and sold plot no. 3389 to the 3 rd Defendant, while retaining plot no. 3888. The Plaintiff has accused the Defendants of depriving her of her only land, on which she has buried her kin. That the 3 rd Defendant is forcefully evicting her from the land without justification, and has through his farming activities thereon, exhumed graves on the land.
6. The Plaintiff thus avers that if the orders sought herein are not granted, the Defendants will unjustly evict her yet she has no other land apart from the suit property. She asserted that her interests and claim is to be granted title to the portion of the suit property that she is claiming. She stated that she had been in occupation of the suit property for more than 71 years since her birth in 1963. That the 1 st and 2 nd Defendants had no right to sell the disputed and distinct part of the land to the 3 rd Defendant, thereby, the said sale was null and void. She asked that the application be allowed.
The 1 st and 2 nd Defendants’ Case
7. Upon service of the Motion, the 1 st and 2 nd Defendant filed a joint Replying Affidavit sworn on 24 th October, 2024 by Moses Jackson Abuonji Rawayo, the 1 st Defendant, in opposition thereof. The 1 st Defendant accused the Plaintiff of lack of candour, and termed the OS mischievous, malicious and an abuse as well as misuse of judicial time and process. He deponed that the suit property originally known as LR. No. South Ugenya/Yiro/1161 measuring 6.0 Ha was registered in the name of Wando Rawayo (deceased), their grandfather, on 01.12.1971. That he was issued with a title deed on 28.12.1972 under the Registered Land Act.
8. The 1 st Defendant deponed that the suit land was their ancestral land which they had occupied with their entire families before and after the adjudication done in 1971. He averred that he and his brother, the 2 nd Defendant were born and raised on the suit land. He deponed that their late grandfather transferred the suit land to their late father, Cephania Rawayo Wando, on 04.01.1990. That their father subdivided the land into LR. No. South Ugenya/Yiro/1674, which he registered in his name, and LR. No. South Ugenya/Yiro/1675, registered to Joseph Oloo Onguda. He adds that his father established their home on his portion of land, plot no. 1674, where he was buried upon his demise on 26.11.1996.
9. The 1 st Defendant states that thereafter, the land was legally transmitted to him and his brother after they obtained letters of administration, and they were issued with title on 16.08.2023. That they subdivided their land into several plots including LR. No. South Ugenya/Yiro/3838 measuring 3.59 Ha registered to them, and 3839 measuring 0.8 Ha, sold to the 3 rd Defendant. They claimed that their father and grandfather were both buried on the suit property, LR. No. South Ugenya/Yiro/1161 before it was subdivided.
10. According to the Defendants, no intermeddlers have occupied the land or any portion thereof, and he refuted the Plaintiff’s claim that she had occupied 0.8 Ha for over 71 years. The 1 st Defendant claims that in 2021, the Plaintiff lost a family member and she buried them on their father’s land, parcel no. 1674, without their knowledge, consent or authority. He deponed that the Plaintiff even attempted to sell a portion of LR. No. South Ugenya/Yiro/1674 in 2021, but was unsuccessful. He asked the court to find the Plaintiff’s claim unmeritorious.
11. The 1 st Defendant asserts that for one to claim adverse possession, they must prove non-permissive, actual, open, notorious, exclusive and adverse use of the land for the statutory period without interruption. He asserted that he who comes to equity must come with clean hands. He challenged the jurisdiction of this court claiming that an adverse possession claim did not seek to determine a claim relating to title to land, but challenged title to land. Further, that there is no valuation to show that the property was valued at over KShs. 20 million to warrant it being filed in this court instead of the magistrate’s court.
The 3 rd Defendant’s Case
12. The 3 rd Defendant equally opposed the OS by filing a Replying Affidavit sworn on 24 th October, 2024 where he deponed that the 1 st and 2 nd Defendants carried out succession process, after which, they sold him a portion of LR. No. South Ugenya/Yiro/1674 measuring 0.8Ha. That since the said LR. No. South Ugenya/Yiro/1674 had not been demarcated, they invited a surveyor to survey and hive off the portion he had purchased. That therefore, LR. No. South Ugenya/Yiro/1674 was subdivided into LR. No. South Ugenya/Yiro/3838 & 3839. He avers that LR. No. South Ugenya/Yiro/3839 was transferred to him and he was issued with a title deed in February, 2024.
13. The 3 rd Defendant claims that he never heard of any dispute during the succession process, subsequent demarcation and occupation. He alleged that he took vacant possession of the land, had since fenced off his portion, occupied, developed it by putting up a structure and cultivated the land. He averred that the land he purchased was not occupied by the Plaintiff as alleged. That she was never in use of the land, and neither did she have any structures thereon. He claimed that he was an innocent purchaser for value and without notice, having done due diligence, thus the Plaintiff could not attempt to obtain his land. He urged that the Plaintiff’s claim should be directed at the 1 st and 2 nd Defendant, not him.
HEARING AND EVIDENCE
14. On 11 th March, 2025 the court directed that the Originating Summons be converted to a Plaint and the replying Affidavits be converted to Defences. The Court further directed that the suit proceeds by way of viva voce evidence. The case was heard on 11 th June, 2025 and 15 th October 2025.
The Plaintiff’s Case
15. The Plaintiff, Mary Amolo Kitoyi, who introduced herself as a farmer, testified under oath as PW1. She adopted her witness statement dated 31.08.2024 as her evidence-in-chief. She relied on the documents in her List of Documents dated 31.08.2024 as her evidence and produced them as PEx 1-5. She testified that she had come to court to seek assistance because her land was being taken away. She clarified that the land in question is South Ugenya/Yiro/3839, originally parcel no. 1161. She told the court that she knew the Defendants as they lived together on the suit property.
16. On cross-examination by Mr. Ochanyo the Advocate for the 1 st and 2 nd Defendants, PW1 testified that she was born on the suit property in 1953. She testified that adjudication in the area was done in 1971, and that at the time, she was 18 years old and married with children. She testified that she had come to court because she had lived on the land for over 12 years. She stated that she did not object to the adjudication in favour of Wando Rawayo. That from the time of adjudication, 12 years lapsed in the year 1983, although she took no steps then to claim the land.
17. On being referred to the green card, PW1 confirmed that she knew Cephania Rawayo Wando, and admitted that she did nothing when he was registered the owner of the land in 1990 or when he sub-divided it to 1674 & 1675. PW1 was referred to the green card for parcel no. 1674, and she testified that she did not place any objection to the succession proceedings . Further, that she had not lodged any entry against the title claiming interest thereon. PW1 testified that her land is parcel no. 3839, but she did not know when it was opened. She however conceded that per entry no. 6 of the green card, it was made on 19.12.2023. She testified that from 19/12/2023, to date, 12 years had not yet lapsed. She however insisted that she had rights to the property.
18. Cross-examined by Mr. Idi Counsel appearing for the 3 rd Defendant testified that she knew that parcel no. 1675 belonged to Rawayo Wando. She told the court that she did not know Joseph Oloo Ongoda. On being informed that he was the owner of parcel no. 1675, PW1 admitted that she knew he had come into the land as a purchaser. PW1 however did not know if there was an owner before the plot was sold to him. PW1 said that she did not know the 3 rd Defendant as she had never seen him, but had only heard that he had come to the property with a surveyor. She testified that she had not reported this to the chief or the Lands office, and confirmed that the 3 rd Defendant is currently on the land and is using it.
19. On re-examination, PW1 testified that she heard that the survey was done in March, 2024 and had taken no steps then, but had instead filed this suit in 2024 after the 3 rd Defendant took the land. PW1 reiterated that she did not know the 3 rd Defendant as she had never met him. She also reiterated that the 3 rd Defendant is currently using the land after she stopped using it in 2024. She testified that she did not take any steps earlier, and that aside from Cephania, she had not known the land was in the name of any other owner. PW1 reiterated that from 19.12.2023 when the register for plot no. 3839, 12 years had not lapsed and reiterated that plot no. 3839 was a sub-division of parcel no. 1161.
20. John Godia Ahonda testified as PW2 and introduced himself as a farmer and resident of Yiro West Sub-location. He adopted his witness statement dated 31.01.2025 as his evidence-in-chief. He testified that his father was the Plaintiff’s husband’s elder brother. He testified that the Plaintiff was born in 1953 and lived with her family in Yiro West on Parcel no. 1161. PW2 testified that he knew the 1 st and 2 nd Defendant as they were related and they were also neighbours.
21. On cross-examination by Mr. Ochanyo, PW2 testified that the Plaintiff is his paternal uncle’s wife, and she was currently staying on parcel no. 1157. PW2 was referred to his witness statement where he had claimed that adverse possession accrued in 1965, and he testified that in 1965, he was 22 years old, whereas the Plaintiff was 12 years old. PW2 affirmed his statement that even going by the date of the first registration, it accrued in 1983 when the Plaintiff was already an adult of about 30 years and married. He admitted that he had taken no steps to help the Plaintiff as regards her claim on the land, as her brother Peter Owuor Ombiyo was still alive, but could not tell if Peter took any action on the land.
22. PW2 cross-examined by Mr. Idi testified that adverse possession came into play in 1983. He repeated that the Plaintiff is married to his paternal uncle who lives in Nyarana Village, Yiro West Sub-location with the Plaintiff. He further testified that the Plaintiff does not live on plot no. 3839. PW2 however testified that he was there when the Plaintiff was evicted around March/April, 2024, but the 3 rd Defendant was not present at that time. He testified that although the particular parcel is now occupied by the 3 rd Defendant, it belongs to the Plaintiff.
23. On being examined by the court, PW2 testified that he neighbours the Plaintiff on plot no. 3839.
24. With the above the Plaintiff’s case was marked as closed.
The 1 st & 2 nd Defendants’ Case
25. On behalf of the 1 st and 2 nd Defendants’ case, Moses Jackson Abuonji Rawayo, the 1 st Defendant, testified as DW1. He introduced himself as a carpenter and resident of Yiro West, Nyarana village. He adopted his witness statement dated 06.11.2024 as his evidence-in-chief. He also produced the documents in his List of Documents dated 24.10.2025 as DEx1-9, excluding item 8 thereof. PW2 testified that the Plaintiff was his neighbour, the 2 nd Defendant was his younger brother, while the 3 rd Defendant had bought the land from the family of Rawayo. He testified that the first owner of LR. No. South Ugenya/Yiro/1161 was his paternal grandfather, Wando Rawayo. He explained that Cephania Rawayo Wando was his father.
26. DW1 testified that the Plaintiff is their neighbour who was on LR. No. South Ugenya/Yiro/1157, but also stated that parcel no. 1157 was not adjacent to parcel no. 1161, as there is parcel no. LR. No. South Ugenya/Yiro/1160 between the two. He termed the Plaintiff’s testimony and evidence as untrue. DW1 refuted the Plaintiff’s claim that she had lived on the land for 71 years, and testified that he is 57 years old and had lived on the land since 2001 and had never seen the Plaintiff on the land. He insists that the Plaintiff lives on plot no. 1157 and that only the three Defendants’ houses are on the suit land. He asked that the suit be dismissed with costs.
27. Upon cross-examination by Mr. Odera, DW1 reiterated that he was born in 1968 in Nakuru, but had been living on the land since 2001. DW1 testified that the Plaintiff was married and lived on parcel no. 1157 with her people. He however had no document showing that plot no. 1157 belonged to the Plaintiff. DW1 was referred to his statement where he had claimed he was born and raised on the land. To this he testified that he had lived on the land throughout save for going to work and back. He did not know the Plaintiff’s family member who died in 2021 and was buried on the land. DW2 agreed that he never reported the incident or moved to court, and that the body is still buried on Plot no. 1674 even though he was already the registered owner then.
28. DW1 further testified that she did not go to court for succession to enable the transfer to him. DW1 testified that the Plaintiff tried to sell parcel no. 1674, but the buyer conducted a search and realised she did not own the land, thus he abandoned the sale. DW1 conceded that at the time the Plaintiff tried to sell the land, she was cultivating it and when he came back in 2001, he found her cultivating the land. He claimed however that she no longer uses the land and he did not know why she stopped. DW1 admitted that at the time she buried her relative, the Plaintiff was still cultivating the land.
29. DW1 further admitted that the Plaintiff was cultivating a portion of the land but he could not specify the size she was using. He however states that the Plaintiff never entered his or his brother’s portion. DW1 clarified that parcel 1674 is now subdivided into plot nos. 3838, which he owns with his brother, and 3839 which was sold to the 3 rd Defendant in 2024 and is registered to him. He further admitted that the parcel sold to the 3 rd Defendant in 2024 comprised the portion the Plaintiff was cultivating, and that the grave is still on the land.
30. Cross-examined by Mr. Idi, DW1 testified that they sold 2 Acres to the 3 rd Defendant in 2024, and at the time the land was still known as parcel no. 1674. DW1 testified that they sold the land after they had completed succession proceedings for the estate of Cephania, and had registered the Certificate of Confirmation of Grant. DW1 testified that negotiations with the 3 rd Defendant started in 2021, and he took the 3 rd Defendant to the said portion no. 1674. That while there was no boundary or a house at that time of the visit, part of the land was under cultivation, while the rest was a forest. DW1 testified that after purchase, the 3 rd Defendant started using the land in 2023 and they brought the surveyor in 2024 to confirm the boundaries.
31. On re-examination, DW1 testified that he had not brought a search for parcel no. 1157 as it is not the subject of the instant suit. In addition, he stated that he was away when the Plaintiff buried her relative, and his people could not do anything as the body was brought in the evening and buried the following morning. He testified that at entry 3 of the green card, he had not done any succession, but at entry 4 thereof, he had done succession. He could not tell why the Land Registry had not cancelled entry no. 3 after the succession. He reiterated that the Plaintiff tried to sell the land to Godia and even received money. DW1 admitted that they sold the portion that the Plaintiff was cultivating as it had never been her land or in her name. DW2 however stated that the grave was not sold as it fell inside parcel no. 3838.
32. With the above the 1 st and 2 nd Defendant’s case was marked as closed.
The 3 rd Defendant’s Case
33. Jackson Omondi Oloo, the 3 rd Defendant, testified in support of his case as DW2. DW2 told the court that he is a civil servant, working as a deputy County Commissioner residing in Ugunja sub-location. DW2 adopted his Replying Affidavit sworn on 24.10.2025 as his evidence-in-chief. DW2 produced the documents in his List of Documents dated 21.03.2025 as DW2 EXb1-8. He told this court the he did not know the Plaintiff, but knew the 1 st and 2 nd Defendants as they had sold him a portion of parcel no. 1674. He explained that the 1 st and 2 nd Defendants showed him a certificate of Confirmation of Grant and he conducted due diligence by obtaining a search.
34. DW2 told the court that he also visited the land prior to purchase, and confirmed that the land existed and had some few houses. That since there were no boundaries, he invited a surveyor to demarcate the land. DW2 claims that he paid the purchase price in full and that he never encountered any hostility during the visit. That he started using the land in 2023 after purchase. He asserts that he did due diligence, followed the proper procedure to transfer the land and is in occupation, and urged that the case be dismissed with costs
35. DW2 was then cross-examined by Mr. Odera and he testified that he started negotiating on the land in 2023 and not 2021 as claimed by DW1. DW2 further stated that the sale agreement was done in July, 2023 and not 2 nd July, 2024. He however claims that he had been paying in instalments, such that by 2 nd July, 2023 the 1 st and 2 nd Defendants had received full payment. DW2 testified that he took possession in December, 2023 and he had not been made aware of the Plaintiff’s interest on the land or her attempt to sell it. He denied seeing any cultivation, a forest or a graveyard on the land when he visited and claims that he only saw tree stumps. He testified that he could not say whether the 1 st and 2 nd Defendants had not disclosed material facts, but stated that the issue only emerged after this case was filed.
36. Upon cross-examination by Mr. Ochanyo the witness reiterated that he conducted due diligence and did not see the Plaintiff’s name in the documents he obtained. He testified that when he visited the land, there was no indication of the Plaintiff’s claim as she was not on the land at the time of the said visit.
37. On re-examination, DW2 clarified that there was no indication of a grave on the land he purchased.
38. With the above the 3 rd Defendants case was marked as closed.
SUBMISSIONS
39. The Court invited the parties to file their final written submissions. In compliance, the Plaintiff filed her submissions dated 6 th November, 2025. The 1 st and 2 nd Defendants’ filed submissions dated 14 th November, 2025 and the 3 rd Defendant’s submissions are dated 14 th November, 2025.
The Plaintiff’s Submissions
40. Highlighting the summary of the facts of the case and the evidence and testimonies adduced in court, Counsel then identified one issue for determination, whether the Plaintiff had acquired the suit property through adverse possession. It was submitted that the Plaintiff’s witnesses had testified that the Plaintiff was born and raised on the land by her late mother, who she later buried thereon. Counsel submitted that the Defendants were not keen on disputing this fact, but had actually confirmed that the Plaintiff had buried her kin on the land. That the land was sub-divided in 1991, which created the distinct part disputed and which was sold and transferred to the 3 rd Defendant in 2023
41. Counsel however argues that the Plaintiff had acquired the original land by way of adverse possession when it was still intact, before creation of parcel no. 3839. That the Plaintiff acquired the same prior to 1971 prior to the first registration as Parcel no. 1161. It was urged that even if they were to count from the date of registration, 12 years lapsed in 1983, many years before the date of the subdivision leading to the creation of plot no. 3839 that has since been transferred to the 3 rd Defendant. Counsel submitted that the subdivision and sale in 2023 was done 40 years after she had acquired the land by way of adverse possession, thus the land was not available for sale and transfer to the 3 rd Defendant. The court was invited to issue title to the Plaintiff and award costs of the suit.
The 1 st & 2 nd Defendants’ Submissions
42. Summarising the facts and evidence of the case Counsel for the 1 st and 2 nd Defendants cited Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and submitted that the said provisions extinguish a proprietor’s title to land at the expiry of 12 years in favour of an adverse possessor. Counsel also submitted that Section 28(h) of the Land Registration Act recognises overriding interests on land as rights acquired or in the process of being acquired through the laws of limitation or by prescription. Further, that prescription is one of the ways of acquiring land under Section 7 of the Land Act.
43. Counsel pointed that the Plaintiff was an adult during adjudication in 1971 and never took any steps even after 1983 or through the years even when the land was being subdivided, transmitted and sold. Counsel argued that the rights of an adverse possessor are equitable in nature, and are overriding interests on the subject land as against the registered proprietor. Counsel further argued that whereas possession is a matter of fact, the court is required to draw legal inferences on the adverse nature thereof.
44. On the issue of costs, Counsel cited Section 27 of the Civil Procedure Act, and argued that since the Plaintiff had not proved her case, the suit should be dismissed with costs to the 1 st and 2 nd Defendants. Counsel relied on the following cases in support of his arguments; Kasuve vs Mwani Investments Limited & 4 Others 1 KLR 184 , Samwel Nykenogo vs Samwel Orucho Onyaru (2010) eKLR , Joseph Gahumi Kiritu vs Lawrence Munyambu Kabura CA No. 20 of 1993 and Kweyu vs Omuto CA Civ Appeal 8 of 1990 (unreported) .
The 3 rd Defendants’ Submissions
45. Counsel cited the provisions of Section 7 of the Limitation of Actions Act as well as the case of Mbira vs Gachuhi (2002)1 EALR 137 for the elements of adverse possession. It was submitted that the Plaintiff failed to establish a credible claim for adverse possession owing to material inconsistencies in her pleadings, witness statement and oral evidence regarding the date that her possession became adverse. That the Plaintiff’s claims are conflicting, thus it is not clear when exactly she contends to have come onto the land adversely. Counsel argued that the Plaintiff cannot be heard to claim that she entered into the land and adversely occupied it when she was a minor who was born thereon.
46. It was asserted that the Plaintiff was juggling between two dates, instead of showing the specific date that she relies on, thus failing on the limb of possession of the land for the requisite 12-year period. Counsel further submitted that in claiming that the 1 st and 2 nd Defendants’ grandfather fraudulently procured registration and left out their family, the Plaintiff was claiming ownership of the land, which cannot run concurrently with a claim for adverse possession. Further, that the Plaintiff did not disclose who her parents were or how and when they came to be in the suit property. Counsel argued that the Plaintiff could only claim adverse possession under the persons who first occupied the land adversely as against the registered owner’s interest.
47. Additionally, it was submitted that the testimony had established that the Plaintiff was married and lived at her matrimonial home and not the suit property. Counsel reiterated the 3 rd Defendant’s testimony that he only found trees and thickets when he visited the suit land prior to purchase. It was asserted that the burial of a loved one does not buttress ownership, and that the same was contested by the 1 st and 2 nd Defendant. Counsel submitted that the Plaintiff had not shown this court the specific acreage of the land she is claiming, and that the 0.8 Ha claimed is as a result of the subdivision that gave rise to parcel no. 3839. Consequently, the Plaintiff had failed to prove that she had acquired the land by way of adverse possession.
48. As to the claim that the 3 rd Defendant is an innocent purchaser for value without notice, counsel cited the case of Katende vs Haridar & Company Ltd (2008)2 EA 173 . it was submitted that the 3 rd Defendant conducted due diligence, visited the suit property and paid the consideration in full. He reiterated the 3 rd Defendant’s allegation that when he visited the suit property, he found only stumps and thickets and no structures. He adds that the 3 rd Defendant was not informed of any adverse claim over the suit property and the vendors guaranteed that the land was free from any encumbrances.
49. It is submitted that the 3 rd Defendant currently holds a certificate of title acquired through a lawful process, and that he was not party to any fraud or knowledge of third-party claims. Citing Section 26(1) of the Land Registration Act it was submitted that the Plaintiff had not proved any of the vitiating grounds set out therein. Counsel urged therefore that the 3 rd Defendant’s title is indefeasible. That the Plaintiff had also not proved any of the elements required in adverse possession, and in fact the grave was n
[...truncated]
(1) WHETHER the Plaintiff has been in open, quiet and notorious possession of an area measuring 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 in the names of JACKSON OMONDI OLOO for a period exceeding 12 years required in Law for acquisition of land by way of adverse possession.
(2) WHETHER the Defendant’s entitlement and title to a portion measuring 0.8Ha out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889(HA) has become extinguished upon expiry of 12 years from the time the Plaintiff acquired the same in the year 1994.
(3) WHETHER the Plaintiff is entitled to the title of a portion measuring 0.8 Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 by virtue of adverse possession since she has occupied the same for a period running over 71 years without interruption.
(4) WHETHER the Plaintiff has acquired the title to the said portion of land measuring 0.8 Ha (2 Acres) out of the said land by virtue of adverse possession and whether such title shall be issued for the portion he possesses.
(5) WHO should pay the costs of this application?
2. The Plaintiff specifically seeks for the following orders:
A. THAT the Defendant’s right over 0.8Ha (2 Acres) out of LR. SOUTH UGENYA/YIRO/ 1161 (6.0HA) now divided to create plot No. 3889 as has been possessed by the Plaintiff for over 12 years is extinguished by adverse possession from the time Plaintiff acquired the same.
B. THAT the Plaintiff do and is hereby granted right of TITLE to an area measuring 0.8 HA (2 Acres) out of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889.
C. THAT this Honourable Court either reverts the subdivided titles 3888 & 3889 to the original suit land SOUTH UGENYA/YIRO/1161 for proper distribution to the Plaintiff or alternatively orders the Land Registrar Ugenya Sub- County to transfer the title SOUTH UGENYA/YIRO/3839 directly to the Plaintiff.
D. THAT an ORDER of permanent injunction be and is hereby issued against the Defendants permanently restraining them either by themselves, relatives, servants, workers, agents and/or any other persons claiming through them from interfering with the defined portion of LR. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 which the Plaintiff is claiming.
E. THAT this Honourable Court do issue further ORDERS it may deem just and expedient.
F. THAT the cost of this suit be provided for by the Defendants.
3. The Plaintiff swore an Affidavit dated 31 st August, 2024 in support of the Originating Summons. The Plaintiff’s case is that the parcel of land known as LR. No. SOUTH UGENYA/YIRO/1161 (6.0HA) now divided to create plot No. 3889 (suit property) was prior to this suit registered in the name of Wando Rawayo, the 1 st and 2 nd Defendants’ grandfather. The Plaintiff averred that she had no parcel of land prior to the land adjudication exercise in 1971. The Plaintiff however claims that she was born and raised in the suit property in 1953, before the adjudication exercise of 1971.
4. The Plaintiff claims that she was 18 years old at the time of adjudication, but the Defendants’ grandfather Wando Rawayo secretly registered his name as the proprietor of the whole suit land without involving her. That she has been on the land for over 12 years, and had by the year 1983, acquired the same by way of adverse possession. She avers that on 4 th January, 1990 the 1 st and 2 nd Defendants’ father, one Cephania Rawayo Wando, secretly and without the Plaintiff’s knowledge, secretly substituted the names of Wando Rawayo. That he further sub-divided it into 1674 and 1675 and owned the same until his demise.
5. The Plaintiff avers that on 26 th June, 2023 the 1 st and 2 nd Defendants substituted their deceased father on the title without consulting her, despite knowing that she had interests on the land. She alleged that the 1 st and 2 nd Defendants have since subdivided the portion she occupies with her family and sold plot no. 3389 to the 3 rd Defendant, while retaining plot no. 3888. The Plaintiff has accused the Defendants of depriving her of her only land, on which she has buried her kin. That the 3 rd Defendant is forcefully evicting her from the land without justification, and has through his farming activities thereon, exhumed graves on the land.
6. The Plaintiff thus avers that if the orders sought herein are not granted, the Defendants will unjustly evict her yet she has no other land apart from the suit property. She asserted that her interests and claim is to be granted title to the portion of the suit property that she is claiming. She stated that she had been in occupation of the suit property for more than 71 years since her birth in 1963. That the 1 st and 2 nd Defendants had no right to sell the disputed and distinct part of the land to the 3 rd Defendant, thereby, the said sale was null and void. She asked that the application be allowed.
The 1 st and 2 nd Defendants’ Case
7. Upon service of the Motion, the 1 st and 2 nd Defendant filed a joint Replying Affidavit sworn on 24 th October, 2024 by Moses Jackson Abuonji Rawayo, the 1 st Defendant, in opposition thereof. The 1 st Defendant accused the Plaintiff of lack of candour, and termed the OS mischievous, malicious and an abuse as well as misuse of judicial time and process. He deponed that the suit property originally known as LR. No. South Ugenya/Yiro/1161 measuring 6.0 Ha was registered in the name of Wando Rawayo (deceased), their grandfather, on 01.12.1971. That he was issued with a title deed on 28.12.1972 under the Registered Land Act.
8. The 1 st Defendant deponed that the suit land was their ancestral land which they had occupied with their entire families before and after the adjudication done in 1971. He averred that he and his brother, the 2 nd Defendant were born and raised on the suit land. He deponed that their late grandfather transferred the suit land to their late father, Cephania Rawayo Wando, on 04.01.1990. That their father subdivided the land into LR. No. South Ugenya/Yiro/1674, which he registered in his name, and LR. No. South Ugenya/Yiro/1675, registered to Joseph Oloo Onguda. He adds that his father established their home on his portion of land, plot no. 1674, where he was buried upon his demise on 26.11.1996.
9. The 1 st Defendant states that thereafter, the land was legally transmitted to him and his brother after they obtained letters of administration, and they were issued with title on 16.08.2023. That they subdivided their land into several plots including LR. No. South Ugenya/Yiro/3838 measuring 3.59 Ha registered to them, and 3839 measuring 0.8 Ha, sold to the 3 rd Defendant. They claimed that their father and grandfather were both buried on the suit property, LR. No. South Ugenya/Yiro/1161 before it was subdivided.
10. According to the Defendants, no intermeddlers have occupied the land or any portion thereof, and he refuted the Plaintiff’s claim that she had occupied 0.8 Ha for over 71 years. The 1 st Defendant claims that in 2021, the Plaintiff lost a family member and she buried them on their father’s land, parcel no. 1674, without their knowledge, consent or authority. He deponed that the Plaintiff even attempted to sell a portion of LR. No. South Ugenya/Yiro/1674 in 2021, but was unsuccessful. He asked the court to find the Plaintiff’s claim unmeritorious.
11. The 1 st Defendant asserts that for one to claim adverse possession, they must prove non-permissive, actual, open, notorious, exclusive and adverse use of the land for the statutory period without interruption. He asserted that he who comes to equity must come with clean hands. He challenged the jurisdiction of this court claiming that an adverse possession claim did not seek to determine a claim relating to title to land, but challenged title to land. Further, that there is no valuation to show that the property was valued at over KShs. 20 million to warrant it being filed in this court instead of the magistrate’s court.
The 3 rd Defendant’s Case
12. The 3 rd Defendant equally opposed the OS by filing a Replying Affidavit sworn on 24 th October, 2024 where he deponed that the 1 st and 2 nd Defendants carried out succession process, after which, they sold him a portion of LR. No. South Ugenya/Yiro/1674 measuring 0.8Ha. That since the said LR. No. South Ugenya/Yiro/1674 had not been demarcated, they invited a surveyor to survey and hive off the portion he had purchased. That therefore, LR. No. South Ugenya/Yiro/1674 was subdivided into LR. No. South Ugenya/Yiro/3838 & 3839. He avers that LR. No. South Ugenya/Yiro/3839 was transferred to him and he was issued with a title deed in February, 2024.
13. The 3 rd Defendant claims that he never heard of any dispute during the succession process, subsequent demarcation and occupation. He alleged that he took vacant possession of the land, had since fenced off his portion, occupied, developed it by putting up a structure and cultivated the land. He averred that the land he purchased was not occupied by the Plaintiff as alleged. That she was never in use of the land, and neither did she have any structures thereon. He claimed that he was an innocent purchaser for value and without notice, having done due diligence, thus the Plaintiff could not attempt to obtain his land. He urged that the Plaintiff’s claim should be directed at the 1 st and 2 nd Defendant, not him.
HEARING AND EVIDENCE
14. On 11 th March, 2025 the court directed that the Originating Summons be converted to a Plaint and the replying Affidavits be converted to Defences. The Court further directed that the suit proceeds by way of viva voce evidence. The case was heard on 11 th June, 2025 and 15 th October 2025.
The Plaintiff’s Case
15. The Plaintiff, Mary Amolo Kitoyi, who introduced herself as a farmer, testified under oath as PW1. She adopted her witness statement dated 31.08.2024 as her evidence-in-chief. She relied on the documents in her List of Documents dated 31.08.2024 as her evidence and produced them as PEx 1-5. She testified that she had come to court to seek assistance because her land was being taken away. She clarified that the land in question is South Ugenya/Yiro/3839, originally parcel no. 1161. She told the court that she knew the Defendants as they lived together on the suit property.
16. On cross-examination by Mr. Ochanyo the Advocate for the 1 st and 2 nd Defendants, PW1 testified that she was born on the suit property in 1953. She testified that adjudication in the area was done in 1971, and that at the time, she was 18 years old and married with children. She testified that she had come to court because she had lived on the land for over 12 years. She stated that she did not object to the adjudication in favour of Wando Rawayo. That from the time of adjudication, 12 years lapsed in the year 1983, although she took no steps then to claim the land.
17. On being referred to the green card, PW1 confirmed that she knew Cephania Rawayo Wando, and admitted that she did nothing when he was registered the owner of the land in 1990 or when he sub-divided it to 1674 & 1675. PW1 was referred to the green card for parcel no. 1674, and she testified that she did not place any objection to the succession proceedings . Further, that she had not lodged any entry against the title claiming interest thereon. PW1 testified that her land is parcel no. 3839, but she did not know when it was opened. She however conceded that per entry no. 6 of the green card, it was made on 19.12.2023. She testified that from 19/12/2023, to date, 12 years had not yet lapsed. She however insisted that she had rights to the property.
18. Cross-examined by Mr. Idi Counsel appearing for the 3 rd Defendant testified that she knew that parcel no. 1675 belonged to Rawayo Wando. She told the court that she did not know Joseph Oloo Ongoda. On being informed that he was the owner of parcel no. 1675, PW1 admitted that she knew he had come into the land as a purchaser. PW1 however did not know if there was an owner before the plot was sold to him. PW1 said that she did not know the 3 rd Defendant as she had never seen him, but had only heard that he had come to the property with a surveyor. She testified that she had not reported this to the chief or the Lands office, and confirmed that the 3 rd Defendant is currently on the land and is using it.
19. On re-examination, PW1 testified that she heard that the survey was done in March, 2024 and had taken no steps then, but had instead filed this suit in 2024 after the 3 rd Defendant took the land. PW1 reiterated that she did not know the 3 rd Defendant as she had never met him. She also reiterated that the 3 rd Defendant is currently using the land after she stopped using it in 2024. She testified that she did not take any steps earlier, and that aside from Cephania, she had not known the land was in the name of any other owner. PW1 reiterated that from 19.12.2023 when the register for plot no. 3839, 12 years had not lapsed and reiterated that plot no. 3839 was a sub-division of parcel no. 1161.
20. John Godia Ahonda testified as PW2 and introduced himself as a farmer and resident of Yiro West Sub-location. He adopted his witness statement dated 31.01.2025 as his evidence-in-chief. He testified that his father was the Plaintiff’s husband’s elder brother. He testified that the Plaintiff was born in 1953 and lived with her family in Yiro West on Parcel no. 1161. PW2 testified that he knew the 1 st and 2 nd Defendant as they were related and they were also neighbours.
21. On cross-examination by Mr. Ochanyo, PW2 testified that the Plaintiff is his paternal uncle’s wife, and she was currently staying on parcel no. 1157. PW2 was referred to his witness statement where he had claimed that adverse possession accrued in 1965, and he testified that in 1965, he was 22 years old, whereas the Plaintiff was 12 years old. PW2 affirmed his statement that even going by the date of the first registration, it accrued in 1983 when the Plaintiff was already an adult of about 30 years and married. He admitted that he had taken no steps to help the Plaintiff as regards her claim on the land, as her brother Peter Owuor Ombiyo was still alive, but could not tell if Peter took any action on the land.
22. PW2 cross-examined by Mr. Idi testified that adverse possession came into play in 1983. He repeated that the Plaintiff is married to his paternal uncle who lives in Nyarana Village, Yiro West Sub-location with the Plaintiff. He further testified that the Plaintiff does not live on plot no. 3839. PW2 however testified that he was there when the Plaintiff was evicted around March/April, 2024, but the 3 rd Defendant was not present at that time. He testified that although the particular parcel is now occupied by the 3 rd Defendant, it belongs to the Plaintiff.
23. On being examined by the court, PW2 testified that he neighbours the Plaintiff on plot no. 3839.
24. With the above the Plaintiff’s case was marked as closed.
The 1 st & 2 nd Defendants’ Case
25. On behalf of the 1 st and 2 nd Defendants’ case, Moses Jackson Abuonji Rawayo, the 1 st Defendant, testified as DW1. He introduced himself as a carpenter and resident of Yiro West, Nyarana village. He adopted his witness statement dated 06.11.2024 as his evidence-in-chief. He also produced the documents in his List of Documents dated 24.10.2025 as DEx1-9, excluding item 8 thereof. PW2 testified that the Plaintiff was his neighbour, the 2 nd Defendant was his younger brother, while the 3 rd Defendant had bought the land from the family of Rawayo. He testified that the first owner of LR. No. South Ugenya/Yiro/1161 was his paternal grandfather, Wando Rawayo. He explained that Cephania Rawayo Wando was his father.
26. DW1 testified that the Plaintiff is their neighbour who was on LR. No. South Ugenya/Yiro/1157, but also stated that parcel no. 1157 was not adjacent to parcel no. 1161, as there is parcel no. LR. No. South Ugenya/Yiro/1160 between the two. He termed the Plaintiff’s testimony and evidence as untrue. DW1 refuted the Plaintiff’s claim that she had lived on the land for 71 years, and testified that he is 57 years old and had lived on the land since 2001 and had never seen the Plaintiff on the land. He insists that the Plaintiff lives on plot no. 1157 and that only the three Defendants’ houses are on the suit land. He asked that the suit be dismissed with costs.
27. Upon cross-examination by Mr. Odera, DW1 reiterated that he was born in 1968 in Nakuru, but had been living on the land since 2001. DW1 testified that the Plaintiff was married and lived on parcel no. 1157 with her people. He however had no document showing that plot no. 1157 belonged to the Plaintiff. DW1 was referred to his statement where he had claimed he was born and raised on the land. To this he testified that he had lived on the land throughout save for going to work and back. He did not know the Plaintiff’s family member who died in 2021 and was buried on the land. DW2 agreed that he never reported the incident or moved to court, and that the body is still buried on Plot no. 1674 even though he was already the registered owner then.
28. DW1 further testified that she did not go to court for succession to enable the transfer to him. DW1 testified that the Plaintiff tried to sell parcel no. 1674, but the buyer conducted a search and realised she did not own the land, thus he abandoned the sale. DW1 conceded that at the time the Plaintiff tried to sell the land, she was cultivating it and when he came back in 2001, he found her cultivating the land. He claimed however that she no longer uses the land and he did not know why she stopped. DW1 admitted that at the time she buried her relative, the Plaintiff was still cultivating the land.
29. DW1 further admitted that the Plaintiff was cultivating a portion of the land but he could not specify the size she was using. He however states that the Plaintiff never entered his or his brother’s portion. DW1 clarified that parcel 1674 is now subdivided into plot nos. 3838, which he owns with his brother, and 3839 which was sold to the 3 rd Defendant in 2024 and is registered to him. He further admitted that the parcel sold to the 3 rd Defendant in 2024 comprised the portion the Plaintiff was cultivating, and that the grave is still on the land.
30. Cross-examined by Mr. Idi, DW1 testified that they sold 2 Acres to the 3 rd Defendant in 2024, and at the time the land was still known as parcel no. 1674. DW1 testified that they sold the land after they had completed succession proceedings for the estate of Cephania, and had registered the Certificate of Confirmation of Grant. DW1 testified that negotiations with the 3 rd Defendant started in 2021, and he took the 3 rd Defendant to the said portion no. 1674. That while there was no boundary or a house at that time of the visit, part of the land was under cultivation, while the rest was a forest. DW1 testified that after purchase, the 3 rd Defendant started using the land in 2023 and they brought the surveyor in 2024 to confirm the boundaries.
31. On re-examination, DW1 testified that he had not brought a search for parcel no. 1157 as it is not the subject of the instant suit. In addition, he stated that he was away when the Plaintiff buried her relative, and his people could not do anything as the body was brought in the evening and buried the following morning. He testified that at entry 3 of the green card, he had not done any succession, but at entry 4 thereof, he had done succession. He could not tell why the Land Registry had not cancelled entry no. 3 after the succession. He reiterated that the Plaintiff tried to sell the land to Godia and even received money. DW1 admitted that they sold the portion that the Plaintiff was cultivating as it had never been her land or in her name. DW2 however stated that the grave was not sold as it fell inside parcel no. 3838.
32. With the above the 1 st and 2 nd Defendant’s case was marked as closed.
The 3 rd Defendant’s Case
33. Jackson Omondi Oloo, the 3 rd Defendant, testified in support of his case as DW2. DW2 told the court that he is a civil servant, working as a deputy County Commissioner residing in Ugunja sub-location. DW2 adopted his Replying Affidavit sworn on 24.10.2025 as his evidence-in-chief. DW2 produced the documents in his List of Documents dated 21.03.2025 as DW2 EXb1-8. He told this court the he did not know the Plaintiff, but knew the 1 st and 2 nd Defendants as they had sold him a portion of parcel no. 1674. He explained that the 1 st and 2 nd Defendants showed him a certificate of Confirmation of Grant and he conducted due diligence by obtaining a search.
34. DW2 told the court that he also visited the land prior to purchase, and confirmed that the land existed and had some few houses. That since there were no boundaries, he invited a surveyor to demarcate the land. DW2 claims that he paid the purchase price in full and that he never encountered any hostility during the visit. That he started using the land in 2023 after purchase. He asserts that he did due diligence, followed the proper procedure to transfer the land and is in occupation, and urged that the case be dismissed with costs
35. DW2 was then cross-examined by Mr. Odera and he testified that he started negotiating on the land in 2023 and not 2021 as claimed by DW1. DW2 further stated that the sale agreement was done in July, 2023 and not 2 nd July, 2024. He however claims that he had been paying in instalments, such that by 2 nd July, 2023 the 1 st and 2 nd Defendants had received full payment. DW2 testified that he took possession in December, 2023 and he had not been made aware of the Plaintiff’s interest on the land or her attempt to sell it. He denied seeing any cultivation, a forest or a graveyard on the land when he visited and claims that he only saw tree stumps. He testified that he could not say whether the 1 st and 2 nd Defendants had not disclosed material facts, but stated that the issue only emerged after this case was filed.
36. Upon cross-examination by Mr. Ochanyo the witness reiterated that he conducted due diligence and did not see the Plaintiff’s name in the documents he obtained. He testified that when he visited the land, there was no indication of the Plaintiff’s claim as she was not on the land at the time of the said visit.
37. On re-examination, DW2 clarified that there was no indication of a grave on the land he purchased.
38. With the above the 3 rd Defendants case was marked as closed.
SUBMISSIONS
39. The Court invited the parties to file their final written submissions. In compliance, the Plaintiff filed her submissions dated 6 th November, 2025. The 1 st and 2 nd Defendants’ filed submissions dated 14 th November, 2025 and the 3 rd Defendant’s submissions are dated 14 th November, 2025.
The Plaintiff’s Submissions
40. Highlighting the summary of the facts of the case and the evidence and testimonies adduced in court, Counsel then identified one issue for determination, whether the Plaintiff had acquired the suit property through adverse possession. It was submitted that the Plaintiff’s witnesses had testified that the Plaintiff was born and raised on the land by her late mother, who she later buried thereon. Counsel submitted that the Defendants were not keen on disputing this fact, but had actually confirmed that the Plaintiff had buried her kin on the land. That the land was sub-divided in 1991, which created the distinct part disputed and which was sold and transferred to the 3 rd Defendant in 2023
41. Counsel however argues that the Plaintiff had acquired the original land by way of adverse possession when it was still intact, before creation of parcel no. 3839. That the Plaintiff acquired the same prior to 1971 prior to the first registration as Parcel no. 1161. It was urged that even if they were to count from the date of registration, 12 years lapsed in 1983, many years before the date of the subdivision leading to the creation of plot no. 3839 that has since been transferred to the 3 rd Defendant. Counsel submitted that the subdivision and sale in 2023 was done 40 years after she had acquired the land by way of adverse possession, thus the land was not available for sale and transfer to the 3 rd Defendant. The court was invited to issue title to the Plaintiff and award costs of the suit.
The 1 st & 2 nd Defendants’ Submissions
42. Summarising the facts and evidence of the case Counsel for the 1 st and 2 nd Defendants cited Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and submitted that the said provisions extinguish a proprietor’s title to land at the expiry of 12 years in favour of an adverse possessor. Counsel also submitted that Section 28(h) of the Land Registration Act recognises overriding interests on land as rights acquired or in the process of being acquired through the laws of limitation or by prescription. Further, that prescription is one of the ways of acquiring land under Section 7 of the Land Act.
43. Counsel pointed that the Plaintiff was an adult during adjudication in 1971 and never took any steps even after 1983 or through the years even when the land was being subdivided, transmitted and sold. Counsel argued that the rights of an adverse possessor are equitable in nature, and are overriding interests on the subject land as against the registered proprietor. Counsel further argued that whereas possession is a matter of fact, the court is required to draw legal inferences on the adverse nature thereof.
44. On the issue of costs, Counsel cited Section 27 of the Civil Procedure Act, and argued that since the Plaintiff had not proved her case, the suit should be dismissed with costs to the 1 st and 2 nd Defendants. Counsel relied on the following cases in support of his arguments; Kasuve vs Mwani Investments Limited & 4 Others 1 KLR 184 , Samwel Nykenogo vs Samwel Orucho Onyaru (2010) eKLR , Joseph Gahumi Kiritu vs Lawrence Munyambu Kabura CA No. 20 of 1993 and Kweyu vs Omuto CA Civ Appeal 8 of 1990 (unreported) .
The 3 rd Defendants’ Submissions
45. Counsel cited the provisions of Section 7 of the Limitation of Actions Act as well as the case of Mbira vs Gachuhi (2002)1 EALR 137 for the elements of adverse possession. It was submitted that the Plaintiff failed to establish a credible claim for adverse possession owing to material inconsistencies in her pleadings, witness statement and oral evidence regarding the date that her possession became adverse. That the Plaintiff’s claims are conflicting, thus it is not clear when exactly she contends to have come onto the land adversely. Counsel argued that the Plaintiff cannot be heard to claim that she entered into the land and adversely occupied it when she was a minor who was born thereon.
46. It was asserted that the Plaintiff was juggling between two dates, instead of showing the specific date that she relies on, thus failing on the limb of possession of the land for the requisite 12-year period. Counsel further submitted that in claiming that the 1 st and 2 nd Defendants’ grandfather fraudulently procured registration and left out their family, the Plaintiff was claiming ownership of the land, which cannot run concurrently with a claim for adverse possession. Further, that the Plaintiff did not disclose who her parents were or how and when they came to be in the suit property. Counsel argued that the Plaintiff could only claim adverse possession under the persons who first occupied the land adversely as against the registered owner’s interest.
47. Additionally, it was submitted that the testimony had established that the Plaintiff was married and lived at her matrimonial home and not the suit property. Counsel reiterated the 3 rd Defendant’s testimony that he only found trees and thickets when he visited the suit land prior to purchase. It was asserted that the burial of a loved one does not buttress ownership, and that the same was contested by the 1 st and 2 nd Defendant. Counsel submitted that the Plaintiff had not shown this court the specific acreage of the land she is claiming, and that the 0.8 Ha claimed is as a result of the subdivision that gave rise to parcel no. 3839. Consequently, the Plaintiff had failed to prove that she had acquired the land by way of adverse possession.
48. As to the claim that the 3 rd Defendant is an innocent purchaser for value without notice, counsel cited the case of Katende vs Haridar & Company Ltd (2008)2 EA 173 . it was submitted that the 3 rd Defendant conducted due diligence, visited the suit property and paid the consideration in full. He reiterated the 3 rd Defendant’s allegation that when he visited the suit property, he found only stumps and thickets and no structures. He adds that the 3 rd Defendant was not informed of any adverse claim over the suit property and the vendors guaranteed that the land was free from any encumbrances.
49. It is submitted that the 3 rd Defendant currently holds a certificate of title acquired through a lawful process, and that he was not party to any fraud or knowledge of third-party claims. Citing Section 26(1) of the Land Registration Act it was submitted that the Plaintiff had not proved any of the vitiating grounds set out therein. Counsel urged therefore that the 3 rd Defendant’s title is indefeasible. That the Plaintiff had also not proved any of the elements required in adverse possession, and in fact the grave was n
[...truncated]