[2017] KECA 718 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A)

Civil Appeal No.33 Of 2016

BETWEEN

BAKARI SHEBAN & 39 OTHERS ……. APPELLANT

AND

SAID BIN RASHID KHAMIS …..…... RESPONDENT

(An appeal from the Judgment of the learned Judge (Amollo, J.) dated 26th May, 2015 inLand Environment Division Case No. 208 Of 2013 (OS))

********

JUDGMENT OF THE COURT

The Land and Environment Court at Mombasa dismissed the appellant’s amended originating summons brought by 40 individuals, “the appellants”who were claiming ownership of Parcel Number 24/II/MN C.R.1224(suit property)measuring 19. 12 acres on Junda Creek, Mombasaby adverse possession. Thirty nine of them are said to have given authority to one person, Bakari Shebanto appear, plead and act on their behalf in the proceedings in the court below.

It was their claim that they had been in continuous, peacefuland adverse occupation of the suit property for over 30 years; that they dealt with it as if it belonged to them by, forinstance, subdividingand allocating portions of it to others and building on it permanentstructures.

The suit in the court below was brought against the respondent his mother and siblings, who inherited the suit property from their late father and husband for their part filed a counterclaim for vacant possession through eviction of the appellants and damages for trespass. Hestated thatthey hadat all the material times, though not physically on the suit property, maintained their presence and ownership through activities like sinking a well, putting up a house, engaging a caretaker as well as employing a guard who lived on the suit property, andby regular visits; that on 18thSeptember, 2013 when the respondents visited the suit property they were attacked by a group ofyouth. According to the caretaker, prior to this date,he had drawn the respondents’ attentionto harvesting of sand on the suit propertyby strangers who had threatened him and beaten the guard; thaton the suit property, they also noticed newly built temporary structures and that trees on the suit property had been cut down.

Following the attack,some of the appellants were charged in court with trespass. Those charged absconded. In March, 2012 even the structure the respondent had constructed on the suit property was demolished. The respondents maintained that the appellants only invaded the suit property in 2010 when the sand harvesting began; that some of the appellants lived in the neighbouring properties.

Omollo, J heard and evaluated the foregoing summarized evidence but was not persuaded by the evidence presented on behalf of the appellants, and guided by the decision in Kasuve V Mwaani Investments Limited& 4 Others (2004)1 KLR 184, declared that the appellants had failed to discharge the burden on them to show that they had been in occupation of the suit property for 12 years; that Bakari Shebanwho represented the appellants knew only 3 of the 39 appellants and; that even then he could not say when they entered the suit property or what they were doing on the suit property.The learned Judge found in favour of the respondents and granted an order of vacant possession andgave the appellants 30 days within which to voluntarily vacate the suit property. The respondents were awarded costs.

This appeal brought to challenge that decision is premised on three grounds as follows;

“1. THAT the learned Judge erred in law by making a finding that the appellants had not proved their case on a balance of probability and therefore not available for orders of adverse possession.

2. THAT the learned Judge erred in law by making a finding that the respondents had proved their claim in the counter claim and proceeded to issue orders of eviction against the appellants.

3. THAT the learned Judge erred in law by making a finding that the proceedings commenced by way of originating summons, a defence and counter claim can be entertained as a response.”

Making submissions before us,Mr. Okanga, learned counsel urged us to upset the decision of the learned Judge and find that Bakari Shebanpresented evidence to prove that all the appellants were on the suit property for a period in excess of the statutory 12 years; that the respondents failed to prove their counterclaim since they denied that the appellants were on their land.

On behalf of the respondents Mr. Khatib, learned Counsel asked us to strike out the appeal as it was brought out of time and without leave of the court. On the merit of the appeal he submitted that the suit was filed in the court below on behalf of 39 plaintiffs but before the trial judge their representative gave evidence concerning only himself and only in relation to the ¼ acre, with the result that the claims of the rest remained unproven or abandoned; that the respondents, on the other hand gave evidence of how they interrupted the temporary occupation of the suit property by strangers; that the appellants were not on the suit property and if they were, then they had not been on it for more than 12 years; and that there was no evidence of exclusive possession, the date of entry or evidence that the respondents were dispossessed.

Like any other civil claim, the burden was on the appellants to prove on a preponderance of evidence that their occupation of the suit property wasadverse, in the sense that that occupation was hostile,open,actual,uninterrupted,notorious,exclusive and continuous for a period of 12 years. SeeKweyu V Omutut(1990) KLR 709.

In that decision the Court also stated that;

“The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely…….the intention of the dispossessor is to appropriate and use the land as his own to the exclusion of all others irrespective of any semblance or shadow of actual title or right.”

For us to determine the foregoing parameters, we are duty bound by the provisions of rule 29of the Court of Appeal Rules and the principles laid down in the well-known case of Selle & Another V Associated Motor Boat Company Limited &Others (1968) EA 123, tore-appraise the evidence on record and to draw our own independent inferences of fact.

But before we do that,it is appropriate at this stage to dispose of the submission by Mr.Khatib that the appeal is incompetent for the reason that it was filed out of time and without leave of the court. Such an argument cannot be raised in the appeal because the court procedures make specific provisions of challenging an appeal lodged out of time under rule 84, by an application to strike out the appeal. Such application must be made within 30 days from the date of service of the notice of appeal or record of appeal as the case may be. The notice of appeal was filed on 9th June,2015 and the record lodged on 26th April,2016. Mr. Khatib did not state when he was served. What is critical for us however is that when Mr. Khatib raised the issue in his submissions on 12th October,2016 there was not an application contemplated by rule 84 aforesaid.

To the substance of the appeal,it was incumbent upon the appellants to demonstrate that bythe timethey brought the suit against the respondents in 2013the latter had been barred by the provisions of section7of the Limitation of Actions Act from claiming the suit property from them.

It is acceptable both under the Evidence Act (section 143) and the Civil Procedure Rules for one person to present evidence on behalf or instead of others and such evidence would be sufficient to prove the case if it meets the threshold of proof.

Thirty nine(39)ofthe fourty (40) appellants gave Bakari Shebanauthority in writing to present and prosecute the case on their behalf. In a suit for adverse possession where it is critical to prove the date of entry and whether possession was adverse as explained in Kweyu case (supra),the duty to call evidence in proof of those aspects cannot be gainsaid. It follows that the person nominated by the group would be one who is conversant with the case of each claimant. In the alternative, nothing stops each of the claimants from giving evidence irrespective of the time it may take if there are numerous claimants. The delay that may result is the price to pay for justice. It would probably take the same time if each claimant were to file separate suits. In this case Bakari Shebanappeared to have forgotten that he was presenting the case on behalf of each appellant and instead concentrated his testimony to the ¼ acre he was claiming.

He said about the rest of the appellants as follows;

“Each of the 39 plaintiffs came by themselves. I cannot tell what they are doing…..I cannot tell when the 2nd plaintiff entered this land. I only know 2nd, 3rd and 17th plaintiffs……I cannot tell when these other plaintiffs entered this land. Iam only occupying quarter acre. …the last house is mine. The house plus iron sheets look new as it was built in 2013. I changed the house……The other portions,I do not know who should get them. I am only interested in ¼ acre.”

That was all the evidence upon which the court below was expected to find that all the 40 appellants had been in adverse possession of the suit property for 12 years. Without losing sight of the standard of proof in civil cases, this evidence was,as it were, a gamble and no court properly directing itself on the law and the evidence would have come to a contrary conclusion from that of the learned Judge, that the claim was not proved. There was no evidence, even for Bakari Shebanhimself as to when he entered the suit property. Apart from the evidence of Bakari Shebanregarding his house, there was no evidence as to the nature of development on the suit property by the other appellants or when they were put up, or even what other activities on the suit property the appellants are engaged in.

The house belonging to BakariShebanwas, by his own admission, recently built in 2013, although he argued that he had only changed the roofing sheets. This was in the same year the suit was brought. Although he also said that he had an older house before 2013, he did not state when that other house was built.

Like the learned Judge we come to our own independent conclusion that adverse possession was not proved; and that this appeal lacks substance. Accordingly we dismiss it with costs.

Dated and delivered at Mombasa this 17th day of February, 2017

ASIKE-MAKHANDIA

………………

JUDGE OF APPEAL

W. OUKO

……………………….

JUDGE OF APPEAL

K. M’INOTI

……………………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR