[2022] KEELC 349 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT SIAYA

ELC CASE NO.38 OF 2021 (O.S)

GEORGE WERE NYAKORA................................................................PLAINTIFF

VERSUS

FREDRICK ODHIAMBO CHIAMBE...............................................DEFENDANT

JUDGMENT

Introduction

1. By an originating summons dated 31/07/2018 and amended on 26/02/2020, the plaintiff instituted suit against the defendant seeking to be declared an adverse possessor of a portion of land parcel number South Sakwa/Barkowino/2730 measuring 19. 08 metresby10. 30 metres [portion B] (“hereinafter the suit property”) and for the suit property to be transferred to him. He also sought costs of the suit.

2. In defence, the defendant filed a replying affidavit dated 15/08/2018 and amended on 1/09/2020 in which he denied the plaintiff’s claim.

3. In reply to the defendant’s replying affidavit, the plaintiff filed a supplementary affidavit dated 2/12/2020. In rebuttal to the plaintiff’s supplementary affidavit, the defendant filed a further affidavit dated 30/3/2021 whereafter the matter proceeded by way of written submissions.

The Plaintiff’s case and evidence

4. The plaintiff’s case is contained in his amended originating summons, affidavit in support dated 26/02/2020, supplementary affidavit, witness statement filed on 31/01/2019, witness statements of Alfred Owino Asuke, Mathews Juma Alego and Duncan O. Ochoro all filed in court on 27/02/2019 and documents in support of his case.

5. In summary, it was the plaintiff’s case that Esta Onono Okudo (deceased) entered into an agreement of sale with Alego Omuya(deceased) who was the owner of South Sakwa/Barkowino/2705 on 9/3/1977 for Kshs.400/. He adduced a sale agreement and certificate of translation as evidence of this.

6. He averred that South Sakwa/Barkowino/2730where the suit property sits is a subdivision of South Sakwa/Barkowino/2705. He contended that a surveyor identified and marked the purchased portion.

7. He contended that Esta constructed residential units on the suit property and when he purchased the suit property from him on 7/5/2004 for Ksh. 150,000/=, he took over the suit property together with the structures and tenants thereon. That upon Esta’s death, he paid the final balance of the purchase price of Kshs. 80,000/- to Esta’s dependant one Duncan O. Ochoro on 30/10/2006. He adduced a sale agreement and certificate of completion of payment as evidence of this.

8. He asserted that Alego Omuya died before he transferred the suit property to Esta and similarly too, Esta died before transferring the suit property to him.

9. He stated that Alego Omuya transferred South Sakwa/Barkowino/2730including the suit property to his son Peter Alego Omuya without excising and transferring the suit property to Esta. He adduced a “greencard” as evidence of this.

10. Upon Peter’s demise on 5/7/1991, his brother Mathews Juma Alego [Peter’s brother] obtained letters of administration Ad litemin 2015 to administer Peter’s Estate and consequently, he entered into a new sale agreement dated 27/09/2016 with Mathews. He adduced Peter’s death certificate, Letters of Administration Ad Litem and Sale Agreement in support of these assertions.

11. That Mathews sold a portion South Sakwa/Barkowino/2730to Simon Chiambe Oloo however, Simon fraudulently transferred the entire parcel of land parcel number South Sakwa/Barkowino/2730to himself and later transferred it to his wife Jenifa Akinyi Awino and his son; the defendant. He asserted that Simon similarly bought a portion of South Sakwa/Barkowino/2730in the 1980’s which was separate and distinct from the suit property.

12. On particulars of fraud, he contended that Simon fraudulently transferred the entire South Sakwa/Barkowino/2730to himself including the suit property without first obtaining letters of administration of Peter’s Estate.

13. He contended that he had been in exclusive and uninterrupted possession of the suit property in a manner that was open, without secrecy and without interruption or resistance for a period of over 12 years and that he had been paying land rates and rent for it. He contended that the defendant had acquired the suit property by fraudulent means. He adduced photographs of structures that were allegedly on the suit property.

14. The plaintiff’s witness Alfred Owino Asuke contended that he witnessed the sale agreement between the plaintiff and Esta. His other witness, Mathews contended that the defendant’s father intermeddled with his brother Peter’s Estate. The last witness Duncan O. Ochoro contended that he was a next of kin of Esta and he had received the balance of the purchase price of Kshs. 80,000/- from the plaintiff.

Defendant’s case and evidence

15. The defendant’s case is contained in his replying and further affidavit. In summary, the defendant asserted that the plaintiff had not met the threshold of sustaining a claim of adverse possession and that the plaintiff had concealed and fabricated material facts.

16. He asserted that South Sakwa/Barkowino/2730 was subject to another case; Land Case Number 236 of 2015between the defendant and one Stewart Jalang’o Agot and that both plaintiffs could not claim to have exclusive possession of South Sakwa/Barkowino/2730 and that in any case Stewart had lodged a caution over South Sakwa/Barkowino/2730thus the plaintiff’s occupation of the suit property was not peaceful.

17. He contended that fraud must be specifically proved and if at all the plaintiff had a claim, then it behoved upon him to pursue his claim with Esta for specific performance and that in any case, Esta was never a registered proprietor of South Sakwa/Barkowino/2730and therefore he did not have capacity to sell the suit property to the plaintiff.

The plaintiff’s written submissions

18. Through counsel, the plaintiff filed written submissions dated 12/03/2021 in which he identified three areas he identified for determination; (i)permanent injunction (ii) illegality, fraud and conspiracy and (iii) trespass.

19. On injunction, he submitted that he was seeking a permanent injunction restraining the defendant, his agents and or any other person claiming under him from interfering with the suit property and on this, he relied on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.

20. On illegality, fraud and conspiracy, he contended that the act of the

defendant’s father transferring South Sakwa/Barkowino/2730to himself without Peter’s Estate being administered was fraudulent and a nullity and his title was defeasible by virtue of Section 26of the Land Registration Act. He relied on the case of Dr. Joseph N.K. arap Ngok v Justice Moijo ole Keiwaand4 others, Civil Application No.NAI 60of1997in support of his case.

21. On trespass, he contended that the defendant’s father’s action of transferring the suit property to his wife and defendant amounted to continuing trespass. He submitted that the plaintiff was an adverse possessor of the suit property and had capacity to challenge the continued trespass by the defendant.

Defendant’s written submissions

22. Through counsel, the defendant filed written submissions dated 30/03/2021 where he raised three issues for determination: (i) Whether the plaintiff had obtained good title over the suit property from the vendor, (ii) Whether the plaintiff had established ownership by adverse possession and (iii) Whether the plaintiff was entitled to prayers sought and, (iv) Who should bear the costs of the suit.

23. On the 1st issue, the defendant stated that Esta had never been registered as a proprietor of South Sakwa/Barkowino/2730 and therefore could not pass good title to the plaintiff.

24. On the 2nd issue, he submitted that an adverse possessor must demonstrate: when he came into possession; nature of possession; whether possession was known to the other party and; the possession was open and uninterrupted for a period of over 12 years. He placed reliance on several authorities including Maweu v Liu Ranching and Farming Cooperative Society [1985] KLR 430 and Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR. T

25. The respondent submitted that the plaintiff could not institute a claim of adverse possession if he acquired the suit property and regularly by way of purchase. On this he relied on the cases of M’mbaoni M’thaara v James Mbaka [2017] eKLR and Samuel Katana Nzunga & 102 others v Salim Abdalla Bakshein & another [2013] eKLR.

Analysis and determination

26. I have considered the pleadings together with written submissions and evidence tendered. The key issue falling for determination are; (i) Whether the plaintiff has established a claim of adverse possession (ii) Whether the defendant acquired South Sakwa/Barkowino/2730fraudulently (iii) Whether the orders sought should be granted and, (iv)Who should bear the costs of this suit.

I will proceed to analyse the legal and jurisprudential framework on the issues in a sequential manner.

a)Whether the plaintiff has established a claim of adverse possession

27. On the first issue, the legal framework for adverse possession is provided for in various statutory provisions including Sections 7,13, 17 and 38 (1)and(2) of the Limitation of Actions Act and Section 28 (h) of theLand Registration Act.

28. In the case of Mtana Lewa vs. Kahindi Ngala (2015) eKLR, the Court of Appeal stated as follows:

“The process springs into action essentially by default or in action of the owner. The essential pre-requisites being that the possession of the adverse possession is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner”.

29. The root of the plaintiff’s claim in the suit property emanated from Esta who had acquired it by means of purchase in the year 9/3/77. The register of South Sakwa/Barkowino/2730 which was a subdivision of South Sakwa/Barkowino/2705 was opened on 31/7/1986. None of the parties adduced evidence on when the register of South Sakwa/Barkowino/2705was opened.

30. Though the agreement of sale between Alego Omuya and Esta is dated 9/3/1977, the title number is not disclosed. Nevertheless, this court takes judicial notice that land adjudication process within Siaya region took place in 1970’s to 1980’s.

31. Be that as it may, grounded on the evidence adduced, Esta’s claim to the suit property accrued from 31/7/1986 which was the date the register for South Sakwa/Barkowino/2730 was opened. The Court of Appeal in the case of Chevron(K) Ltd vs. Harrison Charo Wa Shutu (2016) stated thus on when time starts to run in a claim of adverse possession;

“It is a settled principle that a claim for adverse possession can only be maintained against a registered owner... The relevant period would therefore be between 1994, the date of registration of the Appellant as the proprietor and 2008 when the suit was filed.”

32. From the evidence of the plaintiff, by the time Esta sold the suit property to him on 7/5/2004, he had been in possession and occupation of the suit property for a period of 18 years and had even constructed rental units upon it. He contended that when he took over possession, he constructed rental units in addition to what had been sold to him by Esta.

33. The defendant did not controvert any of the plaintiff’s evidence rather he contended that the plaintiff should pursue his grievance against Esta and sue him for specific performance on the ground that Esta was never a registered proprietor. Far from it, within the provisions of Section 28(h)of the Land Registration Act,prescriptive rights override the interests of a registered owner.

34. When did the statutory period of time start running? Founded on the common law concept of tacking, time started running from when Esta’s right to the suit property accrued. The black’s law dictionary has defined tacking as thus;

“To add (one’s own period of land possession) to a prior possessor’s period to establish continuous adverse possession for the statutory period”

35. In the case of Gabriel Mbui v Mukindia Maranya [1993] eKLRKuloba J (as he then was) stated thus in his obiter dictum;

“Tacking is allowed, provided there is a sufficient nexus, often called “privity”, between successors. The nexus will be sufficient if the earlier possessor gives the next one a colourable title document or if the next one is his heir, and there is no interruption”.

36. From the evidence adduced, Esta sold his accrued interest in the suit property to the plaintiff and there was no apparent gap from the date of purchase on 7/05/2004. If one calculates the period of time that Esta and the plaintiff have been in occupation of the suit property to the date of filing the instant suit, one finds that the period of time the plaintiff has been an adverse possessor to be close to 30 years. Ultimately it is my finding that the plaintiff has been in continuous and uninterrupted possession of the suit property for at least 12 years.

37. Another issue is whether such possession has been open and notorious to the knowledge of the owner. The plaintiff contended that he had been in open and notorious possession of the suit property. Possession is a matter of fact and there must be actual possession which requires some sufficient degree of physical occupation. The defendant did not controvert the plaintiff’s evidence. The case of William Kipnyor Rotich v Paul Kiprop Karoney [2020] eKLR cited with approval the case ofErnest Wesonga Kweyu versus Kweyu Omuto CA Civil Appeal No. 8 of 1990where Gicheru J.A.as he then was held thus on occupation and possession;

“there must be facts showing a clear intention to hold adversely, and under a claim of right. De facto use, and occupation must be shown."

38. The plaintiff contended that he bought the suit property together with rental units and that he had put up additional structures on it and he availed copies of photographs in support of this. This court is satisfied that the plaintiff has been in occupation and possession in a manner that demonstrates that he has been in open and notorious occupation to the knowledge of the owner and that the title holder had been dispossessed or has discontinued his possession.

39. It is trite law that an adverse possessor must prove that his act of possession was not as result of permission or license given to him by the owner. The plaintiff testified that he entered the suit property by virtue of a sale agreement. His witness one Alfred Owino Asuke who was a witness to this agreement corroborated that there was an agreement between the plaintiff and Esta; with Esta not being a registered owner. This testimony was not controverted by the defendant and I find that the plaintiff did not have licence or permission of the registered owner to occupy the suit property.

40. The other issue is whether the plaintiff has asserted a hostile title against the owner of the property and has been in exclusive possession. Which in other words means that the plaintiff must prove that his act of possession involved rights irreconcilable with those claimed by the owner of the land such as to give the owner occasion to dispute that possession. The plaintiff contended that he has been in occupation and possession of a portion of suit property. He consistently stated that the portion he possessed was approximately 19. 08 metresby10. 30 metres[suit property] and his tenants were in occupation. These actions by the plaintiff connotes that the plaintiff has asserted a hostile title to the registered owner.

41. It is trite law that if the essential elements of adverse possession are proved, the claim of adverse possession must succeed and it is my net finding that the plaintiff has proved his case on a balance of probabilities.

b)Whether the defendant acquiredSouth Sakwa/Barkowino/2730 fraudulently

42. The mere fact of changing the title document from Peter Omuya Alego’s name to Simon and subsequently to Jenifa Akinyi Owino (deceased) and the defendant does not stop time from running. However, as I address my mind to the issue of fraud that has been specifically pleaded, no orders shall emanate from my finding for the simple reason that the plaintiff has not sought any orders that would otherwise emanate from such a finding.

43. Section 26of theLand Registration Act provides that the title document of a registered proprietor is indefeasible except on the ground of fraud or misrepresentation to which the person is proved to be a party or if it was acquired illegally, unprocedurally or through a corrupt scheme.

44. In several court decisions it has been held that fraud has to be pleaded and proved to a standard above a balance of probabilities but below reasonable doubt.

45. The only way to investigate fraud is to interrogate the ownership of the alleged fraudulent party. From the evidence adduced, Peter Omuya Alego died on 5/07/1991 whereas from the register of South Sakwa/Barkowino/2730, South Sakwa/Barkowino/2730was transferred from Peter Omuya Alego’s name to Simon Chiambe Oloo; the defendant’s father on 28/07/1992. Whereas limited grant of Peter’s Estate was issued to Mathews Juma Alego who was a brother to Peter on 18/12/2015. It was Mathews’s assertion that the defendant’s title to the suit property was fraudulently acquired because it was not possible for Simon to acquire title to South Sakwa/Barkowino/2730without first obtaining grant of letters of administration of Peter’s Estate. In his pleadings, the defendant did not address this issue and the plaintiff’s evidence stands uncontroverted.In the case of Morris Mwiti Mburugu .v. Denis Kimathi M'Mburugu [2016] eKLR, the Court held:-

".... where any person interferes with the free property of the deceased or deals with an estate of a deceased person contrary to the provisions of sections 45 and 82 of the Act, that is intermeddling, is unlawful and cannot be protected by the court. The transaction is subject to be nullified and set aside at the instance of the innocent beneficiaries who may have been affected by the act but were not involved in the same." (Emphasis added).

It is my finding that the title document registered in the defendant’s name was fraudulently acquired.

46. Ultimately, I grant the orders sought and because it is trite law that costs follow the event in the absence of special circumstances, I award costs to the plaintiff and issue the following disposal orders;

a) A declaration be and is hereby issued that a portion of land parcel numberSOUTH SAKWA/BARKOWINO/2730measuring approximately 19. 08 meters by 10. 30 metershas by adverse possession been devolved to the plaintiff.

b) That the plaintiff be registered as the proprietor of a portion of land parcel numberSOUTH SAKWA/BARKOWINO/2730measuring approximately 19. 08 meters by 10. 30 meters.

c) The County Land Registrar, Siaya or such other officer delegated by the County Land Registrar, Siaya within Bondo Sub County shall survey, ascertain and excise from land parcel numberSOUTH SAKWA/BARKOWINO/2730a portion measuring approximately 19. 08 meters by 10. 30 meters that is occupied by the plaintiff.

d) Costs to the plaintiff.

47. It is so ordered.

Judgment delivered virtually.

DATED, SIGNED AND DELIVERED THIS 28TH DAY OF MARCH 2022

IN THE PRESENCE OF:

MR. OORO FOR THE PLAINTIFF.

M/S AKINYI FOR THE DEFENDANT

COURT ASSISTANT: ISHMAEL ORWA

HON. A. Y. KOROSS

JUDGE

28/3/2022