A. Applicant’s Claim
1.By an originating summons dated February 8, 2022 grounded upon Order 37 rule 7 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act (Cap.22) (LAA), the Applicant sought of the following reliefs, that is:a.A declaration that the Applicant is entitled to be registered as the proprietor of a portion of ½ acre of land to be excised from L.R.No: Laikipia/marmanet/5686 by virtue of the doctrine of adverse possession.b.An order to issue compelling the Respondent to execute all the necessary documents to vest ownership of the said ½ acre of land out of L.R_No: Laikipia/Marmanet/5686 to the Applicant and in default, the Deputy Registrar of the Honorable Court be authorized to do so on his behalf.c.That the County Surveyor and Land Registrar to dispense with the production of the original title deed for L.R. No: Laikipia/Marmanet/5686 while subdividing and transferring the ½ acre of land to the Applicant.d.The Respondent to bear the costs of the suit.
2.The said summons was supported by an affidavit sworn by the Applicant on February 8, 2022 and the exhibits hereto. The Applicant pleaded that she had been in open, continuous, exclusive and uninterrupted possession and occupation of a portion of ½ acre out of the suit property which was registered in the name of the Respondent for a period exceeding 12 years prior to the filing of the suit. It was her case that she had been in such exclusive possession for over 24 years without any interference from the Respondent or any person claiming under him. She asserted that she had fenced and developed the said portion of land over the years and as such she had acquired adverse possession thereof through the doctrine of adverse possession.
3.The Applicant further pleaded that she obtained possession of the land on account of purchase from an agent of the Respondent’s deceased father in 1998 but the sale agreement subsequently became void for want of consent of the Land Control Board (LCB) under the Land Control Act (Cap. 302). She consequently sought the various reliefs in the summons.
C. Applicant’s Evidence at the Trial
5.At the trial hereof, the Applicant testified on her own behalf as the sole witness. She adopted the contents of her affidavit sworn on February 8, 2022 in support of the originating summons as her evidence in-chief. She also produced the 4 annexures to the affidavit as exhibits and urged the court to allow her claim for adverse possession.
D. Issues for Determination
6.The court has considered the Applicant’s originating summons dated February 8, 2022 together with supporting affidavit and exhibits thereto. The court is of the opinion that the key questions for determination in the suit are the following:a.Whether the Applicant has proved her claim for adverse possession.b.Whether the Applicant is entitled to the reliefs sought in the suit.c.Who shall bear costs of the suit.
E. Analysis and Determination
a.Whether the Applicant has proved her claim for adverse possession
7.The court has considered the material and submissions on record on this issue. The elements of adverse possession were summarized in the case of Kasuve –vs- Mwaani Investments Ltd & 4 Others  1KLR 184 as follows:
8.Similarly, in the case of Chevron (K) Limited –vs- Harrison Charo Wa Shutu  eKLR it was held, inter alia, that:
9.The court has considered the Applicant’s evidence on her claim for adverse possession. Although her initial entry was with the permission of the owner pursuant to a sale agreement dated October 20, 1998 the consent stood terminated by operation of law upon expiry of 6 months from the date of the agreement for want of the consent of the LCB consent in terms of Section 6 of the Land Control Act. See - Situma –vs- Cherongo  KLR 84.
10.It is evident that the applicant’s evidence on the elements of adverse possession was not challenged at the trial since the respondent did not attend the trial to question its credibility. It is further evident that the Applicant’s evidence was not controverted since the respondent did not attend court to offer contrary evidence. In the premises, the court is inclined to accept the applicant’s evidence on her claim for adverse possession.
11.The court accepts that she has been in open, continuous and exclusive possession of the portion of ½ acre out of the suit property for a period exceeding 12 years from the date the relevant sale agreement became null and void. The court also accepts that her possession was adverse since she fenced and developed that portion of land and continued utilizing it as her own.
12.There is no evidence on record to demonstrate that her possession has ever been interrupted in the legal sense. There was no evidence to show either that the registered owner had made a peaceful and effective entry into the land or that he had instituted legal proceedings for recovery thereof. What appears on record is a demand letter by the Respondent’s advocates which is not sufficient to interrupt the Applicant’s possession in the legal sense. (See Ndeete –vs- Githu  KLR 776). The court is thus satisfied that the Applicant has proved her claim for adverse possession to the required standard.
b. Whether the Applicant is entitled to the reliefs sought in the suit
13.The court has already found and held that the Applicant has proved her claim for adverse possession of the portion of ½ acre she is seeking from the suit property. It would therefore follow that she is entitled to the reliefs sought for the purpose of facilitating her registration as the proprietor of that portion of land. The court is thus inclined to grant the Applicant all the necessary reliefs to facilitate her registration as proprietor under Section 38 of the LAA.
c. Who shall bear costs of the suit
14.Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd  EA 287. It is evident from the material on record that the suit was not defended since the Respondent neither entered appearance nor filed an answer to the originating summons. In the premises, the court is of the opinion that the appropriate order to make is that there shall be no order as to costs.