[2019] KEELC 2614 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MURANG’A

ELC NO. 16 OF 2018(OS)

ELIUD MUCHIRI MUCHORI - PLAINTIFF/APPLICANT

VS

MUCHORI MACHARIA - DEFENDANT/RESPONDENT

JUDGMENT

1. The Applicant’s Originating Summons are dated 28/4/16 and filed on 10/5/16. The Applicant claims to have acquired title to LOC13/KARUNGE/495 (suit land) through Adverse Possession. He urged the Court to determine the following questions;

a. Whether the Applicant has acquired proprietorship and/or ownership of Land Number LOC.13/KARUNGE/495 by reason of Adverse Possession against the Respondent.

b. Whether the Plaintiff should be registered as the proprietor of the land known as LOC.13/KARUNGE/495 on the basis and ground of Adverse Possession, reason being that since 1967 or thereabouts, the Applicant has been openly and peacefully enjoying occupation of the said suit property.

c. Whether the Respondent should execute a transfer and all acts necessary to convey title and ownership of the suit property to the Applicant as the rightful proprietor and to enable him to be registered as such and in default the Deputy Registrar to be authorized to sign the relevant documents on behalf of the Respondent herein and;

d. Whether the Applicant is entitled to the cost of the suit.

2. He deponed in his supporting affidavit dated 28/4/16 that the Respondent was registered as owner of the suit land in 1964 as seen in the annexed copy of the official search dated the 21/12/15. That the Applicant entered the suit land in 1967 after learning and noting that the registered owner who is his uncle was not making use of the suit land. Upon taking possession he has farmed on the suit land exclusively for over 50 years. He deponed that during that long period of occupation and possession neither the Respondent, any of his family members and or members of Mbari ya Njogu and Kiragu clan have asked him to vacate the suit land.

3. The Respondent was served through substituted services however he did not enter appearance nor file a defence.

4. On the directions of the Court being given on the 2/4/19, the application proceeded viva voce pursuant to Order 37 Rule 19(1).

5. The Applicant testified and reiterated his evidence as stated in the Supporting affidavit. He added that he has planted nappier grass trees and carries out subsistence farming on the suit land. That he lives on his land adjacent to the suit land.

6. PW2- John Muchiri Njogu stated that the Applicant is his uncle and that they come from the same village. That he also knows the Respondent, the registered owner of the suit land. He testified that the Applicant entered the suit land in 1967 and has been in exclusive control through farming since then todate. That no one has interrupted his occupation nor asked him to vacate the suit land. He ended by saying he did not know the whereabouts of the Respondent despite being related by clan.

7. The Applicant filed Written Submissions which I have read and considered.

8. The key issue is whether the Applicant has been in continuous open, uninterrupted possession of the suit land; whether the said possession is adverse to the Respondent; whether the title to the suit land has been extinguished in favour of the Applicant.

9. Section 7 of the Limitation of Actions Act provides that an action may not be brought by any person to recover land after the end of 12 years from which the right of action accrued to him or if it accrued to some other person through which he claims to that person. It is in evidence that the Plaintiff has been in possession in excess of 12 years of the suit land. No contrary evidence was tabled in Court to contradict this evidence.

10. Section 13(1) of Limitation of Actions Act provides that a right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as Adverse Possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in Adverse Possession on that date, a right of action does not accrue unless and until some person takes Adverse Possession of the land. In this case the Applicant and his witness have led evidence that the Applicant has been in possession since 1967 todate.

11. In the case of Francis Gacharu Kariri v Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (UR)the Court held;

“…the possession must not be broken, or any endeavours to interrupt it.”

12. There are elements that must be proved or established for one to qualify for Adverse Possession; (a) actual possession or occupancy of the land that is, (b) hostile to the current owner with a right to immediate possession, (c) which is visible, open, notorious, and exclusive, (d) exercised continuously and uninterrupted for a statutorily defined number of years, (e) maintain under some colour of right as against everyone else, (f) with an evinced unmistakable animus possidendi, (g) held in good faith, without fraud.

13. The intruder resisting suit or claiming right by Adverse Possession must make physical entry and be in actual possession or occupancy of the land for the statutory period. Adverse Possession rests on de facto use and occupation by an entrant. The rule that his entry must be followed by possession and appropriation to his use is founded on the reason that a right of action cannot accrue unless there is somebody against whom it is enforceable. Possession is a matter of fact. That there must be actual possession which requires some sufficient degree of physical occupation for the requisite period.

14. The entry and occupation must be with, or maintained under, some claim or colour of right or title, made in good faith by the stranger seeking to invoke the doctrine of Adverse Possession as against everyone else.

15. The occupation of the land by the intruder who pleads Adverse Possession must be non-permissive use, i.e. without permission from the true owner of the land occupied. It is trite that acts done under licence or permitted by, or with love of, the owner do not amount to Adverse Possession and do not give the licensee or permitted entrant any title under the limitation statute.

16. The non-permissive actual possession hostile to the current owner must be unequivocally exclusive, and with an evinced unmistakable animus possidendi, that is to say, occupation with the clear intention of excluding the owner as well as other people. Exclusive possession means that the exercise of dominion over the land must not be shared with the dispossessed owner, the land being in actual possession with intent to hold solely by the possessor to the exclusion of others.

17. The burden of proving title by Adverse Possession rests upon the person asserting it. This is to say the burden of proof is upon the person setting up and seeking to prove title by Adverse Possession. The proof required is on a balance of probability.

18. The Plaintiff stated that he entered the land when he learned and noticed that the Defendant was not utilizing the suit land. There is no evidence that the entry and subsequent possession was with the consent of the Defendant. It is trite that where consent is present then possession is permissive and cannot found a right to Adverse Possession. The effect of consent is to destroy the armor of Adverse Possession.

19. The key test is that the owner of the land must have been dispossessed or has discontinued possession of the property. It is in evidence that the Plaintiff has enjoyed exclusive control and possession of the suit land for over 50 years. There is no evidence that he has been dispossessed nor relinquished possession to either the registered owner or any other person.

20. It is trite that acknowledging the title of the paper owner negates Adverse Possession. The Plaintiff led evidence that he has possessed the suit land openly, dealt with the land as of right and in a manner inconsistent or adverse to the rights of the owner. Anyone observing the adverse possessor should come to the conclusion that the land is his as of right. It is the owner that must reasonably be vigilant by checking on his land during his period of absence of occupation or possession.

21. In the case of Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;

“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.

22. The Plaintiff and his witness have led evidence that the Plaintiff entered the suit land in 1967 carrying out farming activities without interruption todate. The right to Adverse Possession therefore matured and vested in the Plaintiff in 1979. It is in evidence that the Plaintiff has been in possession for over 50 years without any interruption.

23. The Court is satisfied that the Plaintiff has acquired the rights of Adverse Possession and is entitled to protection of this Court under section 28(h) of the Land Registration Act, 2012.

24. The upshot is that Plaintiff case succeeds. I grant the orders as follows;

a. That the Applicant has acquired title of Land Number LOC.13/KARUNGE/495 by reason of Adverse Possession against the Respondent.

b. That the Plaintiff be and is hereby ordered to be registered as the proprietor of the land known as LOC.13/KARUNGE/495.

c. To meet the ends of justice, the Deputy Registrar of this Court be and is hereby directed to execute all the documents requisite to effect the orders of this Honourable Court.

d. The Land Registrar may dispense with the production of the original title as the case may be.

e. I make no orders as to costs.

Orders accordingly.

DELIVERED, DATED & SIGNED AT MURANG’A THIS 4TH DAY OF JULY 2019.

J.G. KEMEI

JUDGE.

Delivered in open Court in the presence of;

Ms Wamuyu HB for Ndambiri for the Plaintiff/Applicant

Defendant: N/A

Irene and Njeri, Court Assistants