[2023] KEELC 22127 (KLR)

Gatambia & another v Macharia (Sued as the legal representative of the Estate of the Late James Macharia Gichure) & 2 others (Environment & Land Case 12 of 2023) [2023] KEELC 22127 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22127 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment & Land Case 12 of 2023

YM Angima, J

December 7, 2023

Between

Julius Gatambia

1st Plaintiff

Peter Njoroge Kaguai (As the legal representative of the Estate of the Late Amos Kaguai Njoroge

2nd Plaintiff

and

Mary Wanjiru Macharia (Sued as the legal representative of the Estate of the Late James Macharia Gichure)

1st Defendant

Chege Mutua

2nd Defendant

Peter Karimi Kamau Peter Karibi Gitau Stephen Kibe Mwaura Peter Kimani Wambui Charles Murugami Wangunyu (Sued as trustees of New Beginning with God Self Help Group)

3rd Defendant

Judgment

A. Plaintiffs’ Claim 1. By an originating summons dated 26. 10. 2007 and amended on 06. 08. 2018 based generally upon the Limitation of Actions Act (Cap.22), the Plaintiffs sought determination of the following questions:a.Whether the occupation and possession by the Plaintiffs of 2. 25 acres and 3 acres respectively of certain portions of Nyandarua/Kirima/713 & 714 have been open, continuous and uninterrupted for at least 12 years.b.Whether the Plaintiffs have acquired ownership of the portions they occupy in Nyandarua/Kirima 713 & 714 by adverse possession.c.Whether the Plaintiffs are entitled under Sections 13, 27 and 38 of the Limitations of Actions Act to be registered as the absolute proprietors of certain portions occupied by the Plaintiffs measuring 2. 25 and 3 acres of all those parcels of land known and registered as Nyandarua/Kirima/713 and Nyandarua/Kirima 714 registered in the Defendants’ names originally known as Kirima Scheme Plot No. 668. d.Whether this honourable court should order that the Plaintiffs be registered as the absolute proprietors of 2. 25 and 3 acres respectively of certain portions of Nyandarua/Kirima 713 & 714 occupied by the Plaintiffs in place of the Defendants.e.Whether the Plaintiffs are entitled to the costs of this summons in the suit.

2. The said summons was supported by the two supporting affidavits of Julius Gatambia and Amos Kaguai Njoroge both sworn on 30. 10. 2007. The 1st Plaintiff contended that he had been in open, continuous and exclusive possession of 2. 25 acres out of the original Plot No. 668 – Kirima Scheme for a period exceeding 12 years. The 2nd Plaintiff contended to have been in occupation of 3 acres out of the original Plot No. 668 – Kirima Scheme in similar circumstances too. The Plaintiffs pleaded to have bought the claimed portions of land from the original owner one, Aram Kamau in 1987 or thereabouts.

3. The Plaintiffs contended that even though they paid the said Aram Kamau the full purchase price, settled upon and developed their respective portions of land, the original owner did not transfer the same to them but he instead subdivided Plot 668 into Title Nos. Nyandarua/Kirima/713 and 714 and transferred the same to the 1st and 2nd Defendants. The 1st Defendant was registered as proprietor of Parcel 714 whereas the 2nd Defendant was registered as proprietor of Parcel 713. The 2nd Defendant was said to have subsequently transferred Parcel 713 to the 3rd Defendant.

4. The Plaintiffs disclosed the existence of some previous suits touching on the suit properties which they contended did not affect their claims for adverse possession. They stated that they had filed Nakuru HCCC No. 33 of 1990 – Amos K. Njoroge & Joseph Gatambia v Aram Kamau & James Macharia seeking inter alia cancellation of subdivision of Plot 668 but the suit was ultimately dismissed for want of prosecution.

5. They also disclosed the existence of Nakuru HCCC No. 70 of 2003 – James Macharia Gichure v Amos K. Njoroge & Julius Gatambia which suit was said to have abated due to the demise of the Plaintiff therein. There was also a subsequent suit being Nakuru HCCC No. 129 of 2005 – Chege Mutua v Amos K. Njoroge & Julius Gatambia which was heard to its logical conclusion and judgment delivered by Hon. William Ouko J. (as he then was) on 10. 05. 2011 during the pendency of the instant suit.

6. It would appear from the material on record that there were other previous suits amongst the parties touching on the suit properties but those suits were considered by this court in its ruling dated 17. 03. 2023 whereby the court declined to strike out the instant suit on account of the doctrine of res judicata or for being an abuse of the court process. The court found and held that the Plaintiffs’ claim for adverse possession had never been heard and determined in previous proceedings.

B. 1st and 2nd Respondents’ Response 7. The 1st and 2nd Respondents filed a joint replying affidavit sworn on 08. 09. 2009 in opposition to the originating summons. They disputed the Plaintiffs’ claim for adverse possession and contended that the Plaintiffs had not met the legal threshold for the orders sought. They pleaded that they were the sole and absolute registered owners of Parcel Nos. 714 and 713 respectively and the exhibited copies of their respective title deeds.

8. The 1st and 2nd Defendants pleaded that it was clear from the Plaintiffs’ documents that they entered the suit properties on the basis of some sale agreements hence they entered the parcels with the permission of the owner hence they could not claim adverse possession of those parcels. The Defendants contended that the instant suit was untenable and bad in law since the Plaintiffs had failed to annex copies of the extracts of title of the suit properties to the originating summons as required by law.

9. They further pleaded that the instant suit was actuated by malice and bad faith and that it was an abuse of the court process on account of previous proceedings amongst the parties including Nakuru HCCC No. 70 of 2003 and Nakuru HCCC No. 129 of 2005. As a consequence, they prayed for dismissal of the suit with costs.

C. 3rd Defendant’s Response 10. The 3rd Defendant did not file any response to the originating summons despite being granted an opportunity to do so on 22. 11. 2022.

D. Summary of Evidence at the Trial a. 1st Plaintiff’s Evidence 11. The 1st Plaintiff relied upon his supporting affidavit sworn on 30. 10. 2007 as well as his witness statement dated 03. 05. 2021 as his evidence in-chief. He also produced the 17 annexures to his supporting affidavit as exhibits. His evidence was to the effect that he had been in open, continuous and exclusive possession of 2. 25 acres out of Parcels 173 and 174 since 1987 when he purchased the same from the original owner, Aram Kamau. He therefore sought the reliefs as per the originating summons amended on 06. 08. 2018.

b. 2nd Plaintiff’s Evidence 12. The 2nd Plaintiff, Peter Njoroge Kaguai, was joined in the suit as the administrator of his late father who was the original 2nd Plaintiff. He adopted the contents of the supporting affidavit sworn by Amos Kaguai Njoroge on 30. 10. 207 as his evidence in-chief. He also adopted the contents of his own witness statement dated 03. 05. 2021 as part of his evidence in-chief.

13. It is evident that both Plaintiffs called 3 additional witnesses (PW3 – PW5) who testified to the effect that they knew the Plaintiffs who were their neighbours and that they had been in possession of the claimed portions of the suit properties for very long periods of time, exceeding 12 years.

c. Defendants’ Evidence 14. The material on record shows that the Defendants did not tender any evidence at the trial despite being accorded an opportunity to do so.

E. Directions on Submissions 15. Upon conclusion of the trial, the parties were granted timelines within which to file and exchange their respective written submissions. The record shows that the Plaintiffs’ submissions were filed on 01. 11. 2023. However, the 1st and 2nd Defendants’ submissions were not on record by the time of preparation of the judgment even though they were on record by the time of delivery of the judgment.

F. Issues for determination 16. The court has considered the pleadings, the evidence and documents on record in this matter. The court is of the opinion that the following are the key issues which arise for determination herein:a.Whether the Plaintiffs have demonstrated their claim for adverse possession of the claimed portions of the suit properties.b.What is the legal effect of the previous suits on the Plaintiffs’ claim for adverse possession.c.Whether the Plaintiffs are entitled to the reliefs sought in the suit.d.Who shall bear costs of the suit.

G. Analysis and Determination a. Whether the Plaintiffs have demonstrated their claim for adverse possession of the claimed portions of the suit properties 17. The court has considered the material and submissions on record on this issue. Whereas the Plaintiffs submitted that they had demonstrated their claim for adverse possession of the respective portions of land they claimed to have purchased from Aram Kamau, the Defendants contended otherwise. The elements of adverse possession were summarized in the case of Kasuve –vs- Mwaani Investments Ltd & 4 Others [2004] 1KLR 184. “….and 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 and without interruption for a period of 12 years either after dispossession of the owner or by the discontinuation of possession by the owner on his own volition, Wanja vs Sakwa No.2 [1984] KLR 284. A title by adverse possession can be acquired under the Limitation of Actions Act for part of the land….”

18. Similarly, in the case of Chevron (K) Limited v Harrison Charo Wa Shutu [2016] eKLR it was held, inter alia, that:“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College [1900]1 Ch.19, 21. ”

19. This being a claim for adverse possession, the court shall not consider other peripheral matters which were raised by the Defendants since this is not a claim for enforcement of the sale agreements made in 1987 between the Plaintiffs and the late Aram Kamau. As a result, the court shall not consider the validity of the said agreements; whether or not the Plaintiffs paid the full purchase price; and whether or not the consent of the LCB was obtained for the transactions.

20. The court is satisfied from the evidence of the Plaintiffs and their witnesses that the Plaintiffs have been in possession of the claimed portions of the suit at least from 1987. The court is further satisfied that the Plaintiffs had developed their respective portions of land by building some houses thereon which were demolished by one of the Defendants in 2006 or thereabouts. The court is further satisfied that their possession was open, continuous and exclusive since there was no evidence of any use or development by either Aram Kamau or any of the Defendants.

21. The 1st and 2nd Defendants contended in their replying affidavit that the Plaintiffs’ possession was with the permission of the original owner Aram Kamau pursuant to the sale agreements of 1987 hence the claim for adverse possession was untenable in law. The Plaintiffs submitted that since the consent of the LCB for the sale transactions was not obtained then the sale agreements became null and void upon the lapse of 6 months from the date they were made. They cited the case of Kano Kajulu Farmers Co-operative Society Ltd v County Land Registrar Kisumu & Another [2020] eKLR in support of that submission.

22. In the said case it was held, inter alia, that:“on whether a purchaser of land in a controlled transaction can lay claim to the land by way of adverse possession, the Court of Appeal in Samuel Miki Waweru -vs- Jane Njeri Richu Civil Appeal No. 122 of 2001 [2007] eKLR held:“In our view, where a purchaser or lessee of land in a controlled transaction is permitted to be in possession of the land by the vendor, or lessor pending completion and the transaction thereafter becomes void under Section 6 (1) of the Land Control Board such permission is terminated by the operation of the law and the continued possession, if not illegal, becomes adverse from the time the transaction becomes void.”The Plaintiff established that it occupied the suit parcel by virtue of a sale agreement in 1977 which has not been challenged by the Defendant. That, on the balance of probabilities, consent of the Land Control Board was not obtained within six months of making the agreement as required under Section 6(1) and 8(1) of the Land Control Act, rendering the transaction void. The Plaintiff’s adverse possession of the property began on October 1977 or thereabouts to date and it is therefore properly placed to claim the suit parcel by virtue of adverse possession.”

23. The court agrees with the Plaintiffs’ submission that the initial permission of the late Aram Kamau for the Plaintiffs to occupy their respective portions was terminated by operation of law upon his failure to obtain the consent of the LCB within 6 months from the date of the relevant sale agreements. Once the two sale agreements became null and void, and the Plaintiffs’ occupation become illegal, there was no way the owner could permit them to continue in illegal occupation of the properties.

24. The other element for consideration is whether or not the Plaintiffs’ possession was interrupted in the legal sense by the previous suits involving the suit properties. As was held in the case of Githu -vs- Ndeete [1984] KLR 776 a person’s possession can be legally interrupted if the land owner either institutes legal proceedings for recovery of his land or makes a peaceful and effective entry into the land. The material on record shows that Nakuru HCCC No. 33 of 1990 was not filed by the owner of the land but was an action filed by the Plaintiffs. The said suit was said to have abated.

25. The suit which could have interrupted the Plaintiffs’ possession was Nakuru HCCC No. 70 of 2003 but the suit was filed more than 14 years after the land register for the suit properties was opened and Aram Kamau registered as owner. The record shows that the land registers for both parcels 713 and 714 were opened on 12. 01. 1989 upon sub-division of Plot 668. If time for purposes of adverse possession were to be reckoned from 12. 01. 1989 then the limitation period for recovery expired on or about 11. 01. 2001. The court is thus of the opinion that the Plaintiffs’ claim for adverse possession had crystallized by the time that suit was filed. The court shall consider the effect of Nakuru HCCC No. 129 of 2005 in the next issue.

26. On the basis of the evidence on record, the court is satisfied that the Plaintiffs have demonstrated on a balance of probabilities their claim for adverse possession to the portions of land they claim. The fact that there was a change of ownership from the original owner Aram Kamau to the Defendants did not affect their claim for adverse possession since adverse possession attaches to the land and runs with the land. See Githu v Ndeete (supra), where it was held that mere change of ownership of land does not affect a claim for adverse possession.

b. What is the legal effect of the previous suits on the Plaintiffs’ claim for adverse possession 27. The material on record shows that the 1st and 2nd Defendants have previously canvassed this issue vide their notice of motion dated 02. 07. 2021. By the said application, the 1st and 2nd Defendants sought to have the Plaintiffs’ suit struck out or dismissed for being res judicata and for being otherwise an abuse of the court process. Vide its ruling dated 17. 03. 2022 the court disallowed the application since there was no evidence to demonstrate that the Plaintiffs’ claim for adverse possession was ever heard and determined in any of the previous proceedings.

28. The court has noted that even though there were several previous suits before the High Court at Nakuru, most of them were never heard on merit. It would appear that some were dismissed for want of prosecution whereas others may have abated due to the demise of some of the parties thereto. The only suit which appears to have been heard on merit is Nakuru HCCC No. 129 of 2005 – Chege Mutua v Amos Kaguai Njoroge & Julius Gatambia which concerned Parcel 713. Judgment in the said suit was delivered on 10. 05. 2011.

29. That suit is of particular significance because although it determined that the 2nd Defendant was the legitimate proprietor of Parcel 713 it gave the Plaintiffs an opportunity to canvass their claim for adverse possession which was still pending in court at the material time. In its judgment, the High Court held as follows:“For the foregoing reasons, the Plaintiff’s claim against the Defendants in this suit succeeds. The Defendants are hereby given ninety (90) days within which to vacate the suit land failure which they will be evicted. After their vacation of or eviction from the suit land, they will be restrained by an order of permanent injunction in terms of prayer (a) in the plaint. It is further noticed that the Defendants have a pending originating summons in which they claim ownership of Nos. 713 & 713 by adverse possession. It is my view that that suit ought to be prosecuted and determined within the ninety (90) days granted herein. Indeed, it is not clear to me why the Defendants elected to bring an originating summons and abandon their application for amendment of the defence to introduce a counter claim for adverse possession. It would have also been convenient to consolidate that suit with this one. In view of my views expressed in this matter, it will be appropriate that the originating summons be heard by either High Court 1 or 2. ”

30. The court is of the opinion that the Plaintiffs were entitled to pursue their claim for adverse possession in view of the High Court judgment dated 10. 05. 2011. It would have been, of course, prudent for the Plaintiffs to have their claim for adverse consolidated with the 2nd Defendant’s claim for recovery of Parcel 713 so that the trial court may render a single judgment disposing of the entire dispute.

31. It would appear that the Plaintiffs had contemplated seeking an amendment to their defence to introduce a counterclaim for adverse possession but they abandoned their application for amendment and opted to pursue the originating summons for adverse possession. The Plaintiffs cannot be faulted for opting for the summons instead of introducing a counterclaim. For a long time, the legal position on the proper mode of instituting and prosecuting a claim for adverse possession has been uncertain. Whereas some courts insisted on due compliance with the procedure set out in Section 38 of the Limitation of Actions Act (Cap.22) and Order 37 of the Civil Procedure Rules, other courts were fairly liberal in matters procedure and allowed a claim for adverse possession to be canvassed through a plaint or counterclaim. It was thus not uncommon to find claims for adverse possession which were not initiated through an originating summons being struct out. So, it is quite possible that the Plaintiffs were merely playing it safe by sticking to procedure.

32. It is evident from the judgment of the High Court that the Plaintiffs were granted a period of 90 days to prosecute their originating summons for adverse possession. This issue was raised by the 1st and 2nd Defendants in their application dated 02. 07. 2021 but the court was satisfied that the Plaintiffs had a reasonable explanation for their failure to comply. In particular, the court was satisfied that the disappearance of the original court file prevented the Plaintiffs from prosecuting their claim expeditiously and within the period of 90 days. The court is thus of the opinion that none of the previous suits had any adverse effect on the Plaintiffs’ claim for adverse possession over Parcels 173 and 174. Their claims for adverse possession crystallized way back in 2001 before the Defendants had initiated any legal proceedings for recovery of the suit properties.

c. Whether the Plaintiffs are entitled to the reliefs sought in the suit 33. The court has found that the Plaintiffs have proved their respective claims for adverse possession of 2. 25 acres and 3. 0 acres respectively out of the suit properties. It is evident from the material on record that the Plaintiffs took possession of their portions before the original Plot 668 was sub-divided into Parcel Nos. 173 and 174. It would not be reasonable to expect them to demonstrate with pin-point accuracy where their parcels fall within Parcel 713 and Parcel 714. It is sufficient if the portions claimed by the Plaintiffs are identifiable on the ground even if they are demarcated by means of cultivation only.

34. The court has further found that the previous suits over the suit property did not adversely affect the Plaintiffs’ claim for adverse possession and that their claim for adverse possession has never been canvassed and determined in any of the previous proceedings. The High Court had in Nakuru HCCC No. 129 of 2005 expressly allowed the Plaintiffs to prosecute their claim for adverse possession expeditiously. In the premises, the court is satisfied that the Plaintiffs are entitled to the reliefs sought in the suit with respect to their claim for adverse possession.

d. Who shall bear costs of the suit 35. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court has noted that although the original court file went missing at some point, the Plaintiffs did not take diligent steps to apply for re-construction thereof and they did not thereafter expeditiously prosecute their suit. The court has further taken into account the fact that the Defendants did not attend court to defend the originating summons for adverse possession even though they sent their advocates to represent them at the trial. In the premises, the court is of the opinion that each party to the proceedings should bear his own costs.

H. Conclusion and Disposal Order 36. The upshot of the foregoing is that the court finds and holds that the Plaintiffs have proved their respective claims for adverse possession of the suit properties. It is, of course, evident that the Plaintiffs are only claiming portions of Parcel 173 and Parcel 174 and not the entire Parcels. As a consequence, the court makes the following orders for disposal of the originating summons dated 26. 10. 2007 and amended on 06. 08. 2018:

a.A declaration be and is hereby made that the 1st and 2nd Plaintiffs have acquired through adverse possession portions on 2. 25 acres and 3 acres respectively out of the Title Nos. Nyandarua/Kirima/713 & 714 and they are entitled to be registered as proprietors of those portions.b.The County Land Surveyor – Nyandarua shall cause to be excised a portion of 2. 25 acres in the possession of the 1st Plaintiff and a portion of 3 acres in the possession of the 2nd Plaintiff out of Title Nos. Nyandarua/Kirima/713 & 714 and then cause the relevant mutations to be drawn and registered. The plaintiffs shall bear the costs of excision.c.The County Land Registrar shall cause the 1st Plaintiff to be registered as proprietor of a portion of 2. 25 acres and the 2nd Plaintiff to be registered as proprietor of 3 acres out of Title No. Nyandarua/Kirima/713 & 714 on account of adverse possession.d.The Deputy Registrar of the court shall sign all the necessary forms, documents and instruments on behalf of the Defendants to facilitate the execution of orders (b) and (c) hereof.e.Each party to the suit shall bear his own costs.It is so decided.

JUDGMENT DATED AND SIGNED AT NYANDARUA THIS 7TH DAY OF DECEMBER, 2023 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM.In the presence of:Ms. Ekesa holding brief for Mr. Konosi for the PlaintiffsMs. Masheti holding brief for Mr. Karanja Mbugua for the 1st & 2nd DefendantsMr. Kinuthia for the 3rd DefendantC/A - Carol..................................Y. M. ANGIMAJUDGE