[2018] KECA 389 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OUKO (P), NAMBUYE & MAKHANDIA, JJ.A)

CIVIL APPEAL NO. 246 OF 2012

BETWEEN

CHANDRAKANT DEVRAJ SHAH..............APPELLANT

=VERSUS=

ALIBHAI HAJI ....................................1STRESPONDENT

FAZAL VELJI VIRANI......................2NDRESPONDENT

(An appeal from a Judgment and decree of the High Court of Kenya at

Machakos (Mr. Justice Dulu, J) dated the 23rd day of February, 2012,

In

Machakos Civil Case No. 179 of 2009 (OS)

*************************

BETWEEN

CHANDRAKANT DEVRAJ SHAH................APPLICANT

=VERSUS=

ALIBHAI HAJI......................................1STRESPONDENT

FAZAL VELJI VIRANI........................2NDRESPONDENT

JUDGMENT OF THE COURT

This is an appeal arising from the Judgment of the High Court, George Dulu, J, dated the 23rd day of February, 2012, dismissing the appellant’s originating summons (O.S).

The background to the appeal is that the appellant took out an O.S against the respondents, dated the 24th day of April, 2004, and subsequently amended on the 13th day of July, 2007, substantively seeking an order that the appellant be registered as the proprietor of one half undivided share of the respondents’ share in Land Reference number 1116 – South of Makindu Township in Kenya, registered at the Land Titles Registry at Nairobi as I.R 948/1 (thesuit property). The originating summons was premised on section 38 of the Limitation of Actions Act (Chapter 22) Laws of Kenya “the Act” and on the grounds on its body and the supporting affidavit of the appellant, together with annextures thereto.

In summary, the appellant contended that he had been in open, continuous, peaceful, as of right, possession of the suit property without force or permission from the respondent, and or any one of the respondents’ agents and/or servants for a period of twelve (12) years; that by reason of the aforementioned factors, the respondents title to the suit property became extinguished in favour of the appellant under section 17 of the Act aforesaid.

Though the respondents were served by way of substituted service through advertisement in the Daily Newspapers, they failed to enter appearance or file a response to the O.S prompting the court to give directions for the O.S to proceed by way of affidavit evidence and oral submissions.

At the conclusion of the trial, the learned Judge after evaluating and analyzing the record and applying the principle in Parklands Properties Limited versus Patel [1981] KLR 52, on proof of an adverse claim to the appellants uncontroverted evidence, made findings thereon as follows: That entries in the Title Documents were quite faint and brief, as one had to strain to read them; there was also a big space between entry 9 & 10 covered by a piece of paper, for which no explanation was given by the appellant. Neither was there an affidavit sworn by anybody from the Lands Office explaining the entries in the title document and their purport, nor one sourced from any other person, including possibly a chief or neighbour to confirm that the appellant actually occupied the land he claimed to have been in open occupation for the allegedlength of time. The receipts for payment of rates did not also show whether it was for the appellant’s half portion or for the respondents’ half portion or for both.

After construing section 38 (1) of the Act and applying it to the record, the Judge made findings that in his view, the words in the said section specifically required physical possession, which is adverse and uninterrupted; that proof of possession could only be established through tangible admissible evidence, which the appellant had failed to provide and on that account, dismissed the OS with no order as to costs.

Upon dismissal of the O.S, the appellant filed this appeal contending that the learned judge erred in law and fact in:

(1) holding that the appellant had not established a claim of adverse possession in respect of one half undivided share of the suit property;

(2) holding and finding that the appellant was duty bound to call an officer from the Lands Office to explain undisputed entries in the Title Document to the suit property, contrary to the position in law that the record of the Register of Titles shall be conclusive evidence of the entries therein;

(3) imposing a greater burden of proof upon the appellant other than that required by law and in holding and finding that the appellant had not met such threshold of proof;

(4) failing to appreciate the legal concept of adverse possession and in misapplying theprinciples of law required to establish a claim of adverse possession;

(5) taking into account extraneous factors inapplicable in the circumstances of the appellant’s claim and in misdirecting his mind to the character, nature and weight of evidence presented to the honourable Court;

(6) holding and finding that the appellant had not proved his claim to the required standard or at all.

Faced in this suit with the same predicament as at the trial, that is, inability to trace the respondents for service upon them of the record of appeal, the appellant sought and on the 28thday of July, 2016, was granted leave to file a formal application for leave of Court to serve the respondents with the record of appeal by way of substituted service. On the 31st day of January, 2018, directions were given that the appellant do notify the respondents of the hearing date, and file written submissions, which submissions, the appellant dated and filed on the 23rdday of April, 2018.

When the appeal came up for hearing, learned CounselMr. N.M. Mwangi,appearing withMr. M.A. Khanwere in attendance for the appellant. There was no appearance for the respondents. The Court being satisfied that the respondents had due notice of the hearing of the appeal, allowed the appellant to prosecute his appeal.

In support of the appeal, the appellant faulted the Judge for his failure to appreciate that the appellant’s evidence before the High Court was not challenged; for restating the prerequisites for establishing a claim for adverse possession and imposing conditions that are alien to proof of claims for adverse possession. Relying onSalim versus Boyd [1971] E.A. 550,counsel submitted that the judge having accepted the appellants uncontroverted testimony that he had been in occupation of the suit property since 1991, there was no justification for the judge to call for extraneous additional evidence to support that assertion.

On entries in the Title Register, the appellant submitted that entries in the Title documents are of no relevance to a claim for adverse possession as these do not go in any way to establish possession, especially when in the appellant’s view; they did not in any way counter the appellant’s claim.

The appellant also faulted the Judge for his failure to appreciate, adopt and apply the applicable threshold of proof for such a claim which is one of proof on a balance of probability, which in the appellant’s view and in the circumstances of this appeal did not require evidentiary corroboration for the appellant’s uncontroverted assertion that he had been in open and exclusive possession and occupation of the suit property in a manner that was adverse to the respondents’ title.

This is a first appeal. It is our duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. SeeSelle–versus- Associated Motor Boat Company[1968] E.A. 123, Jabane –versus- Olenja,[1986] KLR 661, 664. This Court stated inJabane–versus- Olenja KLR 661, 664that it will not lightly differ from the findings of fact of a trial Judge and will only interfere with them if they are based on no evidence. See alsoKenya PortsAuthority –versus- Kunston (Kenya) Ltd, (2009) 2 EA 212where in the Court summarized the principle in the following words:

“This being a first appeal to this Court, the duty of the Court, is to reconsider the evidence, evaluate and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect…”

We have considered the record, the principles of law applicable and the only issue that falls for our determination is whether the learned judge properly found on evidence that the appellant’s O.S did not meet the threshold for establishing an adverse possession claim.

There is no dispute that the O.S was uncontested. In the case ofKirugi & Anotherversus Kabiya & 3 others (1987) KLR 347,the Court of Appeal stated that the burden wasalways on the plaintiff to prove his case on a balance of probabilities and that such burden was not lessened even if the case was heard by way of formal proof. In line with the above holding, the appellant was expected to prove three prerequisites forming the threshold for proof of adverse possession namely, continuity, publicity, and extent. InKasuve versus MwaaniInvestments Limited and 4 others, [2004] 1KLR 184,the court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he had been in exclusive possession of the land openly and as of right and without interruption for a period of twelve (12) years, either after dispossessing the owner or by discontinuance of possession by the owner on his own volition. See alsoJandu versus Kirpal [1975] EA 225;Ng’ati Farmers’ Co-operative Society Ltd versus Councilor Ledidi & 15 others Nakuru CA No. 64 of 2004; Francis Gicharu versus Peter Njoroge Mairu Civil Appeal No. 293 of 2002; Kimani Ruchine versus Shift Rutherford & Co. Ltd [1980] KLR10; Benjamin Kamau Murima & others versus Gladys Njeri, Civil Appeal No. 213 of 1996; Wasui versus Musimba [2002] KLR 396;Kweyu versus Omuto [1990] eKLR 709.

In line with the principles of law distilled from the above case law, in order for the appellant to succeed in his claim against the respondents, he was obligated to demonstrate that the acts relied upon to establish adverse possession were actual, visible, exclusive, hostile, open and notorious; that the respondents lost their right to the suit property through either dispossession, or discontinuation, of their possession of the same by virtue of proven acts or activities carried out on the suit property by the appellant which were inconsistent with the purpose for which the respondents intended to use the suit property for; that on the facts on therecord, the appellant had used the suit property as of rightNec VI Nec clam, nec Precario(no force, no secrecy, no persuasion); that the appellant’s occupation of the suit property was not derived from the respondents in the form of permission, agreement or grant; that the respondents held title of the suit property as at the time the appellant initiated the OS, resulting in this appeal; that the evidence tendered before Court in the appellant’s favour was sufficient for the court to draw legal conclusion that the appellant’s claim for adverse possession against the respondents was well founded both in law and on the facts.

Turning to the specific provision of law under which the appellant’s O.S was premised, it is not disputed that the appellant premised his O.S on section 38 (1) of the Act. It provides:-

“38(1) where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37, or land comprise in a lease registered under any of those Acts, he may apply to the Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land”

This is the provision of law that was construed and applied in the case law highlighted above. It is the same case law that we are enjoined to apply in the determination of this appeal.

In the light of the principle in Ng’ati Farmers’ Co-operative Society Ltd case (supra), the appellant was obligated to prove by way of evidence of proven acts or activities that were carried out by him on the suit property, and which were inconsistent with the purposes for which the respondents intended to use the suit property for. Paragraph 3 and 5 of the affidavit insupport of the OS read as follows:

“(3) States that, I have never seen the said Alibhai Haji and Fazal VeljiVirani ever since I came on the land that is from the 18thFebruary, 1991. (5) I have my employees who cultivate the said land for and on my behalf”

In the light of the above depositions, it is our view that the Judge cannot be faulted for making the observation he made and correctly so, that there was need for additional evidence either from the Chief or the neighbours to support the above assertions. Our reason for finding so is that if the appellant has never met the respondents for the entire period he had allegedly been in occupation of the suit property, there was no way the Judge could have ruled in the appellant’s favour that the acts of cultivation deposed to in paragraph 5 of the supporting affidavit were inconsistent with the respondent’s intended purpose with regard to the use of the suit property.

In line with the principle in Francis Gicharu –versus- Peter Njoroge Mairu case (Supra) for the appellant to succeed in his OS, he was obligated to prove activities carried out on the suit land and not to merely allege them. In the instant appeal, all that the trial Judge had before him was mere allegations in paragraph 5 of the supporting affidavit. No particulars of the employees who allegedly carried out farming activities on behalf of the appellant on the suit property were given nor testified. Neither were the type(s) of farming activities mentioned, nor any proof of any benefits derived from the sale of produce resulting from the said cultivation activities. The Judge cannot therefore, in our view be faulted for calling for extraneous and further evidence to support the appellant’s claim, considering the appellant’s failure to cite either any provisions of law or principle of law which stipulates that evidentiary corroboration of uncontroverted assertions in a claim for adverse possession is uncalled for.

Turning to the prerequisite of want of proof of permission, agreement and or grant on the part of the respondents, our understanding of the holding on this prerequisite inBenjaminKamau Murima & 2 others –versus Gladys Njeri(Supra) is that it denotes knowledge by the title holder of the presence of a person or persons in whom the adverse title is to run. In circumstances where the title holder was unknown to the appellant, the only inference to be drawn from the facts relied upon by the appellant in support of his claim to adverse possession of the suit property is that the title holder was not even aware of the presence of the appellant on the suit property. There was no way in our view, in the circumstances of this appeal, the trial court could have imputed lack of permission, agreement or Grant against the unknown respondents in favour of the appellant.

With regard to scrutiny of the entries in the title documents, it is not correct as contended by the appellant that this was uncalled for. In line with the holding in Wasui –versus-Musumba (Supra),the court was obligated to ensure that the respondents were the title holders as at the time the appellant initiated the O.S against them before making any adverse orders against them had the appellant’s O.S succeeded. We find no fault in the action taken by the Judge in scrutinizing the title documents relied upon by the appellant in support of his claim especially when the Judge gave reasons as to why he faulted them.

Turning to the last ingredient, and in line with the decision in Kweyu –versus Omuto [1990] eKLR 709,the appellant was obligated to demonstrate to the Court that the evidence adduced was sufficient to enable the Judge rule in his favour. In the light of our reasoning given above, it is our finding that the judge correctly assessed the record, applied the correctprinciples of both law and case law to those facts, applied the correct standard of proof and arrived at the correct conclusion on the matter. We find no substance in the appellant’s submission that the Judge applied a higher threshold for proof of an adverse claim alien to the law.

In the result, we find no merit in this appeal. It is accordingly dismissed with no orders as to costs as it was undefended.

Dated and Delivered at Nairobi this 27thDay of July 2018.

W. OUKO (P)

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JUDGE OF APPEAL

R. N. NAMBUYE

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JUDGE OF APPEAL

ASIKE MAKHANDIA

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JUDGE OF APPEAL

I certify that this is atrue copy of the original.

DEPUTY REGISTRAR