[2004] KEHC 645 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CIVIL CASE NO. 3 OF 1999

BENDELE GACHIRI KAMAU ……………PLAINTIFF

VERSUS

GITHINJI KARUKU NGONDI ………1ST DEFENDANT

JAMES MUNENE GITHINJI ………..2ND DEFENDANT

RULING

1. The 2nd Defendant in this matter, James Munene Githinji invoking Order VI Rule 13 (1) (b) and (d) of the Civil Procedure Rules seeks orders that the originating Summons as amended on 9. 7.2004 be struck out. The reasons as set out on the face of the Chamber Summons are that;

i) the claim as therein set out is statutory barred, misconceived and is an abuse of court process.

ii) two similar Applications have previously been filed and orders similar to these now being sought have already been granted.

iii) the claim in the Summons is for adverse possession yet the parties’ relationship is governed by a contract with express terms in the event of default by any party.

2. What happened in this matter was that on 9. 1.1994, the 1st Defendant by a Memorandum of Agreement of the same date sold parcel No. Ngariama/Lower- Ngariama/820 to the Plaintiff and the terms are therein set out. One of those conditions is that the final instalment in part-payment of the purchase price would be paid on the 2nd Defendant obtaining the consent of the Land Control Board. (Clause 4 thereof). Another was that should the Consent aforesaid be refused, the purchaser (the Plaintiff) would be refunded the part-purchase price paid with no interest. It is instructive however that the Agreement does not have a possession clause. The Plaintiff in his Affidavit sworn on 17th December 1998 depones that he went into possession in 1984 and has been in occupation ever since. In his Replying Affidavit to the instant Application he further depones that whereas the Agreement made reference to parcel No. Ngariama/Lower Ngariama/820, in fact he is in occupation of parcel No. Ngariama/Lower Ngariama/819. The discrepancy is explained at paragraph 4 of that Affidavit as having been caused by the 2nd Defendant carrying the title deed for parcel no. 820. This is somehow a contradiction from the earlier affidavit where he says that he actually bought the two parcels at different dates save that the Sale Agreement for parcel no. 819 is not in writing.

3. Anyhow, the Plaintiff then instituted his claim for adverse possession having as earlier said been in uninterrupted occupation for over twelve (12) years.

4. I was completely at a loss as to what Counsel for the 2nd Defendant or his client meant when they argued that the claim is statutory time-barred. At paragraph 5 of the Supporting Affidavit, it is deponed that the Plaintiff should have “filed the claim for adverse possession in 1996. ” It was in 1996 that the

twelve years (12) necessary for a claim for adverse possession ought to crystallize. Is the 2nd Defendant saying that the Plaintiff cannot file the claim after 1996? That would seem to be meaning I attach to their proposition. If so, nothing could be more outrageous in a claim for adverse possession, A claim for adverse possession is made after the expiry of twelve (12) years of uninterrupted possession by a claimant. Any other claim for land must be made before the expiry of twelve (12) years from the date when the right to the land accrued (S.7(2) of the Limitation of Actions Act.)

5. The other point raised is that there have been orders issued on 30. 9.2002 and 3. 12. 2003 which are similar to the orders being sought in the Originating Summons. Again, I am surprised that Counsel could raise that issue as a basis for striking out the Summons itself. The Orders issued on those two dates were temporary injunctions pending the hearing and determination of the matter raised in the Summons. They are not in themselves final orders that would be seen to render the Summons as finalised.

Without saying more, I think the point was completely off the mark.

6. A less outrageous point taken but still of no help to the 2nd Defendant’s case is the proposition that he only became the registered owner of the suit property on 23. 2.1999 and therefore no claim can attach as against his title. I should note at this point that the 2nd Defendant purportedly had title no. Ngariama/Lower/Ngariama/819 transferred to himself by the 1st Defendant on the named date. Our law is very clear that whether or not the ownership of land changes, the claim for adverse possession cannot by that fact alone be defeated. For an exposition of the law on this point, see ;

1. Joseph Gachumi Kiritu vs Munyambu Kabura,

C.A 20/1993.

2. William Gatuhi Murathe vs Gakuru Gathimbi, C.A 49/1996.

3. Githu vs Ndeete 1984 [KLR] 1

4. Titus Mutuku Kasuve vs Rose Ndolo, C.A 35/2002.

5. Titus Mutuku Kasuve vs Sila Musyimi Ndolo, C.A 35/2002.

7. I say this without determining the controversy at all and indicative of the position I shall shortly outline, that this is not a fit case for striking out of the summons at this stage. The point just made and other before it indicate clearly friable issues.

8. Any other point raised by Counsel for the 2nd Defendant would be consigned to the realm of irrelevance in view of what I have stated above and would in any event be of no benefit to his client’s case or to those who would only read about it. 9. I should say this in conclusion; when a party beseeches the court to strike out another’s pleading, its approach must be clinical, razor-sharp and fatal to the pleading. Once blunt, unclear, less than surgically destructive arguments are raised so that all that happens is that a scratch is made on the pleading, the court must allow the pleading to move on either to salvation or meet any other of its known fates at the trial. This is the case with the Originating Summons in this matter. I have deliberately chosen to untie the arguments made to show how loosely they were wrapped around the Originating Summons. The Summons still on its feet cannot be struck out as prayed.

10. I shall without further ado dismiss the Application dated 21. 5.2004. It came out as the one that is frivolous and vexatious and an abuse of court process; the Summons did not.

11. Costs shall be paid to the Plaintiff by the 2nd Defendant in any event.

Orders accordingly.

Dated and delivered in open court on this 17th day of November 2004.

I.LENAOLA

AG. JUDGE

Present: Mr. Okwaro for Paintiff/Respondent

Mr. Muraguri h/b for Mr. Githinji for 1st Defendant

2nd Defendant/Applicant present. Mr. Rika for Rika for 2nd Defendant absent.

I.LENAOLA

AG. JUDGE.