[2024] KEELC 899 (KLR)

Araka & another v Akuma (As Administrator of Teresa Ombeo Deceased) (Enviromental and Land Originating Summons 37 of 2019) [2024] KEELC 899 (KLR) (21 February 2024) (Judgment)

Neutral citation: [2024] KEELC 899 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisii

Enviromental and Land Originating Summons 37 of 2019

M Sila, J

February 21, 2024

Between

Peter Nyamagwa Araka

1st Plaintiff

Nelson Ondieki Marigiri

2nd Plaintiff

and

Daniel Ombeo Akuma (As Administrator of Teresa Ombeo Deceased)

Defendant

Judgment

(Suit for adverse possession; plaintiffs asserting that they purchased portions of the suit land; defendant alleging that there was no purchase but only a lease; evidence showing that indeed the plaintiffs purchased the land and no evidence provided of any lease; time can start running in favour of a purchaser in a claim of adverse possession; entry into land through a sale agreement is not equivalent to entry with the permission of the land owner for which time may not run) 1. This suit was commenced through an Originating Summons filed on 20 November 2019 whereby the applicants (referred to herein as the plaintiffs) contend that they deserve a declaration that they have acquired, by way of adverse possession, title to portions of the land parcel South Mugirango/Bosinange/100. The 1st plaintiff claims title to a portion measuring 250 X 80 feet whereas the 2nd plaintiff claims title to a portion measuring 700 X 86 feet. They claim that they have been in peaceful possession, without force, without secrecy and without interruption, for a period of more than 42 years. The 1st plaintiff contends to have gained entry after the defendant’s father, one Ongeri Otieno (now deceased), sold to him his portion on 10 April 1975, whereas the 2nd plaintiff claims to have purchased his portion on 10 May 1977. They plead that they never followed up on the title since they were great family friends. The plaintiffs had originally sued Teresa Ombeo as the respondent but she passed on and the suit was continued on her behalf by Daniel Ombeo Akuma. In the Originating Summons, the plaintiffs pleaded that Teresa Ombeo was a sister of the late Ongeri Otieno and that she became registered proprietor of the land after obtaining a grant of letters of administration in respect of the estate of Ongeri Otieno, but the interest of Ongeri Otieno had already been extinguished.

2. Teresa Ombeo filed a replying affidavit to oppose the Originating Summons. She acknowledged that she was the registered proprietor of the suit property. She deposed that the suit property originally belonged to her parents who died in the year 1962, and left her, Ongeri Otieno, and her younger sister Mary Kemunto, in the care of their uncle, one Francis Nyamagwa. She deposed that the land came to be registered in the name of Ongeri Otieno and her uncle Nyandoro Nyamagwa (deceased). She deposed that both Ongeri Otieno and Nyandoro Nyamagwa died without leaving any heirs and she thus inherited the suit property as the only surviving member of the family. She deposed that in 1978, the 1st plaintiff entered into a lease agreement with Ongeri Otieno for part of the suit land for a period of four years at a consideration of Kshs. 3,600/=. She deposed that in the same year, the 2nd plaintiff also entered into a lease agreement for part of the land for a term of four years at a consideration of Kshs. 4,000/=. She added that apart from the 1st and 2nd plaintiff, other persons including Nyangweso Nyamosi, Bosibori Araka and Ombasa Araka, also leased portions of the land from Ongeri Otieno. She deposed that in the year 1982, when the leases were due to terminate, the lessees started claiming that they had bought their respective leased portions from Ongeri Otieno. She deposed that following these claims, she filed a report with the area Chief, one William Tamaro, who summoned the lessees and called a meeting of elders to hear and determine the dispute. She averred that despite claiming to have purchased the suit property, they failed to furnish proof of their sale agreements before the elders. She averred that since that first meeting with the Chief, the land has been subject to cases before the Chiefs that followed, till the year 2016 when the matter was heard by Chief Samwel Omweri Sagwe. She averred that for all those years the plaintiffs failed to substantiate their claims of having purchased the suit land. She deposed that subsequently Ongeri Otieno was found murdered in his home under unclear circumstances in the year 2006. She is shocked that the plaintiffs have now emerged with what she termed as backdated agreements which she contends are forgeries. She pointed out that according to the Green Card, Ongeri Otieno got registered as proprietor of the suit land on 7 July 1976, whereas the sale agreements were allegedly prepared on 10 April 1975 at which time Ongeri did not have any land to sell. She has contended that the claim of adverse possession cannot coexist with a claim for purchase of land, and further, that the adverse possession claim can only be brought if the sale agreement is rescinded, and that time would run from the time of termination of such sale agreement.

3. Directions were taken that the suit be heard through viva voce evidence with the Originating Summons deemed a plaint and the replying affidavit a defence.

4. PW-1 was Nelson Ondieki Marigiri the 2nd plaintiff. He relied on the averments in the supporting affidavit and the annextures thereto which inter alia constituted a sale agreement dated 10 May 1977. That sale agreement states that Ongeri Otieno has sold land measuring 700 X 86 feet to the 2nd plaintiff at an agreed consideration of Kshs. 25,000/= paid in cash. The agreement further provides that the land is surrendered to the purchaser and transfer will be effected. Cross-examined, he testified inter alia that he took possession of the land upon purchase. He testified that Ongeri Otieno did not have a house on the land but a house was built for him after he died. He testified the defendant (Teresa) sought to evict them him from the land in 2018 and they went to the Chief in 2016 in an attempt to resolve the dispute but this was in vain.

5. PW-2 was Peter Nyamagwa Araka, the 1st plaintiff. He testified that the original defendant (Teresa) was her cousin as her father and his own father were brothers. He testified that he took possession of the suit land in 1975 after Ongeri sold to him a portion of it and that he has been in possession since then. He testified that at that time, Teresa was already married and was living where she was married. He testified that one of his children died in 1979 and he buried him on the disputed land. He stated that the 2nd plaintiff bought his portion about four years after and they live next to each other. He denied that they only leased the land. He testified that he has built a house on the land and planted trees. There are a total of nine houses, the others having been built by his children. He testified that it was in 2019 that Teresa came to the land and they discovered that she has a title deed in her name.

6. Cross-examined, he testified that the 2nd plaintiff is married to another of his cousin (not a sister to Teresa) and they are all therefore relatives. Ongeri Otieno was also his cousin. He testified that Ongeri had two sisters, Teresa and Mary; Mary is still alive though she does not live on the suit land and is married elsewhere. He testified that he was charged in Ogembo Criminal Case No. E35 of 2020 for Forcible Detainer and the case is still pending. The sale agreement was put to him. He acknowledged that it does not have his signature nor that of the seller. He testified that those who witnessed the agreement included Nicholas Nyaribo and William Tamara though their names are not in the agreement. The agreement does not also include the land parcel number being sold. He recalled going to the Chief in 2016 for resolution of the dispute. He testified that when he bought the land, Ongeri Otieno was the only one in occupation, and that he had built a mud walled house that fell apart, and that later he built a semi-permanent house which is still standing.

7. PW – 3 was Nicholas Nyaribo and he stated that the 1st plaintiff is his brother. He testified that he resides in the suit land having purchased it from Ongeri in 1975. He added that the 1st plaintiff buried his child in the land in 1979 and has built several houses including some for his children. Cross-examined, he acknowledged that he did not witness the sale agreement but stated that he was told about the purchase.

8. PW – 4 was Zebedeo Ondabu Mauti who described himself as a neighbour. He testified that the 1st plaintiff has lived on the land since 1975 and his possession has never been disturbed. He stated that he has built houses and has trees on the land. He could identify some photographs produced as being of the land. They depict various houses and trees. Cross-examined, he stated that he was not present when the land was purchased. He has nevertheless been seeing the plaintiffs on the land residing with their families. He stated that he has no relation with the parties. He added that there are also other persons on the land who are purchasers. He testified that Ongeri had a grass-thatched house which fell apart and another was constructed before he died. He stated that the plaintiffs were living in peace but conflict started after the death of Ongeri and it was claimed that they had only leased the land.

9. The plaintiffs sought adjournment in order to produce the sale agreement of the 1st plaintiff which had been objected to. They however did not appear at the next hearing and I closed their case. The defence also presented its witnesses who testified in absence of the plaintiffs and their counsel.

10. DW-1 was Daniel Ombeo Akuma who is husband to Teresa the original defendant. He mentioned that they got married in 1972. He testified that the disputed land is registered in the name of Teresa after she filed a succession cause following the death of Ongeri. He testified that on 8 November 2019 she wrote a demand letter to the plaintiffs. He added that he reported the occupants at Nyamarambe Police Station and that two occupants surrendered the land though they later changed their minds. He stated that the plaintiffs have not brought the Land Registrar or Surveyor to prove that they are on the suit land. He nevertheless asked that they be evicted as they are in possession by force.

11. With that evidence, the defence closed its case.

12. I invited counsel to file submissions but only Mr. Ondari, learned counsel for the defendant, filed submissions. I have taken these into account before arriving at my decision.

13. This is a case seeking land pursuant to the doctrine of adverse possession. It is trite that in order to prove a case of adverse possession, one needs to demonstrate possession that is nec vi, nec clam and nec precario, that is without force, without secrecy and without permission. The possessor must also be in possession with intention to claim the land to the exclusion of all others, which is described in the terminology that the possessor must have animus possidendi. In our case, the plaintiffs contend that they respectively entered into possession in 1975 and 1979, having purchased the portions that they claim. The defence of the defendant is that there was never any sale agreement but instead these portions were leased to the plaintiffs.

14. What comes out of this defence is that the defendant does not actually refute that the plaintiffs are in possession of the suit land. The defendant does not also refute that the plaintiffs have been in possession uninterrupted since they allegedly took possession as lessors. I have not however seen any evidence to support the allegation that the plaintiffs were lessors. The defendant did not avail any lease agreement and did not avail any witness to support the allegation that the possession of the plaintiffs was pursuant to a lease. But even assuming that the plaintiffs came into possession as lessors for a term of four years, the terms therein expired in the years 1979 and 1983, but they continued in possession. It would mean that their continued possession after expiry of the alleged leases was adverse to that of the registered proprietor who does not appear to have taken any steps to evict them. Although it was said that Ongeri had complained to the Chief, there was nothing tabled to support this and the Chief was not called as a witness of the defendant. In her replying affidavit, the original defendant alluded to a meeting that was called by the Chief and elders but no minutes of such meeting were presented and neither did any of the elders who allegedly attended the meeting called as a witness.

15. It would appear therefore that the plaintiffs lived on the suit land from 1975 and 1979 respectively without any disturbance from the registered proprietor. In fact, it appears to me that attempts to make them vacate the suit land commenced after the original defendant obtained a title in her name. She came to be registered as proprietor on 10 January 2011 and a title deed was issued in her name on 26 September 2014. I have seen a demand letter dated 8 November 2019 written on her behalf inter alia addressed to the 1st plaintiff seeking that he gives vacant possession. It is shortly after that demand letter that this suit was filed. I am afraid that the original defendant attempted to take over the land after the plaintiffs had already clocked twelve years of quiet, uninterrupted possession of the suit land without the permission of the registered owner.

16. The other issue raised by the defendant is that a claim for adverse possession cannot coexist with a claim of purchase of land. I know no such position in law. In his submissions, Mr. Ondari, learned counsel for the defendant asserted the same position and made reference to the case of Muchanga Investments Limited vs Safaris Unlimited Africa Ltd & 2 Others (2009) eKLR, but he did not annex the said decision and I have no benefit of it. But as I have said I see absolutely no issue when a person claims ownership of land through adverse possession on the foundation that he purchased the land. The purchase describes how the person came into possession and goes to demonstrate that the registered owner had relinquished rights over the land so that possession by the purchaser is no longer with the permission of the vendor. Time against the vendor starts running once the purchaser who has fulfilled the conditions of sale takes possession of the land. A purchaser in such instance is not in occupation of the land subject to the permission of the registered owner but in his own right on the basis that he now owns the land to the exclusion of all others and his possession is hostile to the title of the registered proprietor. It is a false argument that when a purchaser is in possession by virtue of purchase then he is in possession with the permission of the owner of the land. What permission, in terms of an ingredient in adverse possession means, is that the possession of the plaintiff can be subjected to termination as of right by the registered proprietor, such that the occupant only possesses the land under the mercy, contract, and/or licence of the registered proprietor.

17. The other issue raised by the defendant in his evidence was that no survey report was filed by the plaintiffs. It would of course be absolutely useful if the plaintiffs had filed a survey report in order to support their claim that they are in possession of the land. However, in our case, as I had earlier stated, possession of the plaintiffs of the suit land was not disputed. What was raised is that the plaintiffs are in possession as lessees and not purchasers, an issue that I have already canvassed above. If possession had been denied maybe a survey report would have been necessary to demonstrate what land and what portion the plaintiffs actually occupy.

18. From the foregoing, it will be seen that I find that the plaintiffs’ suit is merited and I allow it. I declare that they have acquired by way of adverse possession, the portions of land that they have claimed out of the suit land. The plaintiffs are at liberty to survey these portions so as to have independent title to the same. The defendant is ordered to cooperate with the plaintiffs and execute all documents required for purposes of transferring the portions of the suit land claimed by the plaintiffs. In default, the Deputy Registrar of this court to see to it that the requisite documents are so executed. I am also persuaded that the plaintiffs deserve the costs of this suit against the defendant.

19. That should be the end of the matter. However, in the course of the hearing, it was stated that the plaintiffs or one of them are/is facing a charge of Forcible Detainer in Ogembo Criminal Case No. E35 of 2020. If that is the position, such criminal case has no basis, as this court, which is superior to the Magistrates’ Court, has already found that the plaintiffs are entitled to ownership of the disputed land. I trust that the DPP will proceed to terminate the said proceedings.

20. Judgment accordingly.

DATED AND DELIVERED THIS 21 DAY OF FEBRUARY 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISIIDelivered in the presence of :Ms. Gogi for the plaintiffsMr. Mokaya for the defendantsCourt Assistant – Lawrence Chomba