[2023] KEELC 18703 (KLR)

Cheruiyot v Maru & 6 others (Environment and Land Appeal E003 of 2022) [2023] KEELC 18703 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18703 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment and Land Appeal E003 of 2022

MN Mwanyale, J

July 6, 2023

Between

Jemaiyo Tapngisirei Cheruiyot

Appellant

and

Elizabeth Maru

1st Respondent

Lenah Maru

2nd Respondent

Boaz Kiprugut Lagat

3rd Respondent

Stanley Kibitok

4th Respondent

Josphat Kipngetich Kemboi

5th Respondent

The County Land Registrar, Nandi

6th Respondent

The County Land Surveyor, Nandi

7th Respondent

Judgment

1. The Appellant Jemaiyo Tangisirei Cheruiyot who was the original Plaintiff before the lower Court, being dissatisfied with the judgment of Hon DA Ocharo(PM) delivered on March 2, 2022 vide her Memorandum of Appeal penned down 9 grounds of Appeal as follows;a)That the Learned Trial Magistrate erred in both law and fact by dismissing both the Appellant and the Respondent’s suit and counterclaim respectively hence leaving the issue of ownership of the suit portion of land undetermined hence at a limbo.b)That the Learned Trial Magistrate erred in both law and fact by misapprehending the doctrine of continuous trespass hence arriving at an erroneous decision.c)That the Learned Trial Magistrate erred in both law and fact by purporting to award the 1st to 7th Respondents land which does not belong to them in lieu of any supporting documents to that effect hence leading to a miscarriage of justice.d)That the Learned Trial Magistrate erred in both law and fact by failing to enter judgment against the 1st to 7th Respondents on admission after the defence witness confirmed the 1st to 7th Respondents being in occupation of the disputed portion of land belonging to the Appellant hence abating unjust enrichment by the 1st to 7th Respondents.e)That the Trial Magistrate erred in both law and fact by failing to enter judgement for the Appellant despite the overwhelming evidence placed before it in that regard.f)That the Trial Magistrate misdirected himself by failing to properly analyse the submissions on the part of Counsel for the Appellant thereby arriving at a completely erroneous decision.g)That the Learned Trial Magistrate erred in both law and fact by failing to analyse and scrutinize the annextures confirming the suit parcel of land indeed belongs to the Appellant hence reaching a decision is not supported by law.h)That the Learned Trial Magistrate erred in both law and fact by relying on the surveyor’s report which was based on hearsay in lieu of any evidence to corroborate the same.i)In all circumstances of the trial case, the findings of the trial Court are not grounded on any existing law.On the strength of the above grounds the Appellant proposed to the Court for orders that;a)The appeal be allowed with costs to the Appellantb)The judgment delivered on March 21, 2022 be set aside and orders subsequently made in favour of Appellant.c)The Orders of the Trial Court as to costs be set asided)The Appellant be awarded costs of this appeal and in the Trial Court.e)Any other orders this Court may deem just and expedient to grant.

2. Upon admission of the appeal, parties were directed to file written submissions on the appeal; all the parties filed their submissions.

The Appellants Submission 3. The Appellant submitted on each ground of appeal. With regard to ground one the Appellant submits that the Surveyors report confirmed encroachment by the 1st to 6th Respondents by on the Appellants land by 6. 37 acres, hence, the dismissal of the Appellant’s suit in the lower Court and the Respondent counterclaim thus did not resolve the dispute before the court.

4. On ground 2, the Appellant submits that the Trial Court misapprehended the doctrine of continuous trespass hence arriving at an erroneous decision. The Appellant submits that a continuous trespass is one which consists of a series of acts done on consecutive days that are of the same nature, and are renewed or continued from day to day so that the acts in the aggregate form are indivisible harm.

5. In support of this definition, the Appellant cites Jowits Dictionary of English Law 2nd Edition which defines the same as follow’s;-“a continuing trespass is one which is permanent in its nature, as where a person builds on his own land so that part of the building overhands his neighbour’s land.”Black’s law dictionary, a continuing trespass is define as;“a trespass in the nature of a permanent invasion on anothers rights, such as a sign that overhands another property.The Appellant further submits citing Clerk & Lindsel on Torts16th Edition paragraph 23; ……01…..thatEvery continuance of a trespass is a fresh trespass of which a new cause of action arise from day to day as long as the trespass continuous….”

6. On the strength of the above, the Appellant submits that the 1st to 6th Respondents are in continuous trespass to the disputed portion belonging to the Appellant. That the time is immaterial since the same amounts to a new trespass on a day to day basis.

7. Thus submits the Appellant, as the Appellants claim is a continued trespass it is not time barred.

8. The Appellant argued grounds 4 a and 5 of the appeal together. It was the Appellants submission that the proceedings found at pages 160 and 161 of the Record of Appeal, one Mr Nathan Kiprotich Kemboi, the sole witness for the 1st to 6th Respondents confirmed that he was agreeable to the survey report; which confirms encroachment of 6. 84 acres by the 1st to 6th Respondents.

9. The 1st to 6th Respondents do not have any order granting them an extra approximately 6. 84 acres and were ready to return to extra land.

10. The Appellant submits that Respondent having admitted the occupation, the Trial Court ought to have entered judgment on admission.The Appellant further submits that;a)The head tittle of Nandi/Ndalat/Scheme/505 was 6. 56Ha = 16. 21Ha while the ground area measures 3. 79 Ha (9. 37 acres)b)LR No Nandi/Ndalat/275 head title measures 4. 80Ha (11. 86 acres the ground area measures 7. 54 (Ha) 18. 64.

11. The Appellant further submits that relying on Section 25 (1) of the Land Registration Act No 3 of 2012 that the rights of a proprietor shall not be defeated.

12. The Appellant further submits under Section 23(i) of the repealed cap 281, a certificate of title is conclusive evidence of proprietorship. The Appellant submits that the Appellant having been registered on 5th august 2011 and suit having been filed on May 14, 2022 the statutory period for adverse possession had not crystalized as alluded in the 1st to 6th Respondent’s counterclaim.

13. On the strength of the above submissions the Appellant prays for the appeal to be allowed.

The 1st to 6th Respondents Submission 14. Through their Counsel on record, Mr Choge, the 1st to 6th Respondents have submitted on 6 issues that they have framed for determination in this Appeal.

15. The 6 issues are;j)Limitation of action/whether the suit is time barred by operational of the law.k)Rectification of the registerl)General boundariesm)Dispute resolution mechanismsn)Trespasso)Damages

16. On limitation of action, the 1st to 6th Respondent submit that as per Section 7 of the Limitation of Action that the Appellant suit was time barred to begin with as it was a claim to recover land.

17. The 1st to 6th Respondent submit that in so far as the Appellants claim was based on trespass, the same was time barred by virtue of Section 4(2) of the Limitations of Action Act.

18. The 1st to 6th Respondent further submit that their defence and counterclaim ought to have stood as the decisions in Chevron (K) Ltd v Harrison Charo was Shutu [2016] allowed claims on adverse possession brought by way of a defence and counterclaim.

19. With regard to the issue of rectification of Register, the 1st to 6th Respondents submits that the Register’s power under Section 79 of the Land Registration Act are limited to rectifying errors, mistakes or emissions, that do not materially affect the interests of any proprietor and that it is only the Court under Section 80 (i) of the Land Registration Act that has powers to direct the cancellation of a registration.

20. On dispute resolution mechanism the 1st to 6th Respondent submit that under Section 18 of the Land Registration Act, only the Land Registrar is empowered to settle such disputes and the Courts would have no jurisdiction to deal with the same.

21. On the trespass, issue the 1st to 6th Respondents submit that they could not have being trespassing since the property itself was not properly defined on the ground in order to conclude that a particular party breached another’s right.

22. The 1st to 6th Respondents, submit that trespass has to be an unjustifiable intrusion and there was no intrusion on their part.

23. The 1st to 6th Respondents submit that the claim for trespass cannot be ascertained due to the boundary anomaly hence in that regard the prayer of injunction could not issue.

24. The 1st to 6th Respondents submits further that the Court should order the cancellation of the current Registry index map and appropriate boundaries to be rectified in the Registry Index Map to reflect the correct boundaries as per the survey report.

25. The 1st to 2nd Respondents further submit the Court to order a resurvey of the suit parcels and the same be rectified appropriately and any titles found to be not in conformity with the rectified registry index map to be registered and rectified appropriately.

26. On damages, the 1st to 6th Respondents submit that there is no trespass. The Respondents submit that the quantum for trespass must be proved and in support of this submission the 1st to 6th Respondents place reliance to the decision inPeter Mwangi Mbuthia & Another v Samow Edin Osman [2014] eKLR.

The 7th and 8th Respondents: 27. In their submissions before Court the 7th and 8th Respondents are opposed to the Appeal; and have identified 5 issues for determination, to wit;i)Whether the Trial Magistrate erred in both law and fact by dismissing both the Appellants and Respondents suit and counterclaim hence leaving the issue of ownership of the suit portion in limbo.ii)Whether the Trial Magistrate erred in both law and fact by misapprehending the doctrine of continuous trespass.iii)Whether the Trial Magistrate erred in both law and fact by relying on the surveyors report which was based on hearsay.iv)Whether the Trial Magistrate erred in law and in fact by failing to enter judgment against the 1st to 7th Respondents on admission after the defence witness confirmed to the 1st to 7th Respondents being in occupation of the disputed portion of land, belonging to the Appellant hence abating unjust enrichment by the 1st to 7th Respondents;v)Whether the Trial Magistrate erred in both law and fact by failing to enter judgment for the Appellant despite overwhelming evidence, submissions and annextures placed before it.

28. On issue number 1, the 7th and 8th Respondents relying on the decisions in Jane Njeri Arthur vs Joseph Mwaura Njoroge which quoted the decision inAli Mohamed Salim vs Faisal Hassan Ali (2014) eKLR.

29. On the issue that the RIM are not ordinarily used to fix general boundaries and that one has to go beyond the RIM in solving dispute. The 7th and 8th Respondents thus submit that by placing reliance on the survey report, the Learned Magistrate was right as the boundaries on the RIM were an approximation and the boundaries have remained unfettered for the past 50 years.

30. On issue number 2, the 7th and 8th Respondents submit that the Appellant having not questioned the boundary acquiesced to the same hence the issue of continuing trespass does not arise.

31. The 7th and 8th Respondents submit that “under the provision of Section 4 (2) of the Limitation of Action Act, the trespass envisaged therein is a overtime trespass and that the Appellant did not prove continuing trespass and thus the Trial Court was right in reaching the determination.”

32. On issue number 3, the 7th and 8th Respondent submit that survey report was a documentary evidence and it was admissible under Section 64 and 65 of the Evidence Act. The survey report was thus direct evidence and was admissible.

33. On issue number 4, the 7th and 8th Respondent submit that the Appellant failed to prove ownership of the disputed parcels, and submit that the Trial Magistrate maintained status quo as has been for the past 50 years hence the judgment did not enrich and/or abate to the enrichment of the 1st to 7th Respondent, but it maintained the status quo.

34. The 7th and 8th Respondent thus submit that the reliance on the survey report as to boundaries was the fairest thing to do in the circumstances of the case.

35. Before framing the issues for determination a number of issues have been addressed in the submissions by the parties and remain uncontroverted.

36. The first being that the Trial Magistrate in reaching his decision relied on the survey report dated June 27, 2020.

37. The other unconverted issue is that there was no cross – appeal by the 1st to 6th Respondent on the dismissal of their counterclaim and hence the decision dismissing the counterclaim stands and since adverse possession is premised on knowledge of occupation on someone’s property and having admitted that there was no trespass as the demarcation on the ground had not been determined, it follows that there was no knowledge occupation and hence a claim of adverse possession would not suffice in any event.

38. The survey report the basis of the impugned decision noted discrepancies on the acreage on the title and on the ground, but indicated that the boundaries have existed for more than 50 years and there was no point of disturbing the status quo, hence in dismissing the Appellant’s claim, the learned Magistrate did not factor the discrepancy in the title acreage in the title and on the ground.

39. Having analysed the Records of Appeal and the rival of submissions as well as the authorities, the Court frames the following as issues for determination.i)Whether the suit was time barredii)Whether the survey report dated 27th June 202 could conclusively determine the ownershipiii)Whether the appeal is merited.

Analysis and Determination: 40. The Respondents submit that the suit is a claim on trespass which by virtue of Section 1(2) of the Limitation of Action Act is time barred. However the 1st to 6th Respondents concede that from the survey report they have not trespassed as the area was not demarcated from the beginning hence the Appellant’s claim is thus not a suit for trespass but a claim for land as it is similarly not a boundary dispute. It is a claim of land that 6. 7 acres of land comprised in Nandi/Ndalat 505 is being utilized by person occupying Nandi/Ndalat/275. The course of action arose upon issuance of the title deed to the Plaintiff in 2011 and at time of filing suit in 2020 the suit was not time barred.

41. On issue number 2, whereas the survey report indicates that the boundary has existed for more than 50 years, the survey report noted a discrepancy on the acreage occupied on the ground and on the tittle.

42. Since as was held in the decision in Ali Mohamed Salim vs Faisal Hassan Ali (2014)eKLR that one has to go beyond the RIM in solving boundary disputes and since the survey report had noted the discrepancy in acreage occupied and or the ground, it follows thus that there was need to establish the acreage initially allocated to each parcel. That information is ordinarily contained in a document called the acceptance certificate kept in the Settlement Office after clearance of the loan to the SFT.

43. It is the Courts understanding that the boundaries even general boundaries as in this case, should in as far as possible be able to reflect the acreage allocated in the Acceptance Certificate. Whereas the acreage on the title may sometimes be erroneous, the acreage indicated on the title deed should correspond with the acreage on the acceptance certificate as the primary source of information on the allocated acreage.

44. In the present case, the survey report indicated the disparity on the ground and title as follows, in respect of Nandi/Ndalat/505. Head title measures 6. 56Ha (16. 21 acres)

Ground area measures 3. 7Ha ( 9. 37 acres

While in respect of Nandi/Ndalat/275 head title measures 4. 8 Ha. The ground area measures 754 Ha 18. 64 Acres. It follows therefore that the survey report only dealt with the boundaries and the Court did not address the Appellants claim of 6. 84 acres being in the adjacent property.

Disposition: 45. Having found that the survey report was not conclusive and noting that the RIM is equally not conclusive, and as the matter before the Learned Magistrate was a claim for land as opposed to a boundary dispute, the appeal is thus merited and allowed in terms that;a)The suit is referred back to the Trial Court for the Trial Court to hear and receive evidence, on the original allocated acreage on parcels Nandi/Ndalat/275 and Nandi/Ndalat/276, including the respective acceptance certificates, and the mutations on Nandi/Ndalat/276 that gave rise to Nandi/Ndalat/505.

46. Costs of the Appeal shall abide the outcome of the retrial.

47. Judgement accordingly.

DATED AND DELIVERED AT KAPSABET THIS 6TH DAY OF JULY 2023. Hon M. N. MWANYALE,JUDGE.In the presence of;1. Ms. Matoke holding brief for Ms. Tigoi for 7ht and 8th Respondents2. No appearance for Mr. Choge for 1st and 6th Respondent3. No appearance for Isiaho Sawe for Appellant