[2019] KEELC 2511 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 289 OF 2014

GREGORY MWAMWEE WAFULA...................PLAINTIFF

VERSUS

FREDRICK AMWEYA CHEBII

JULIUS WAFULA CHEBII

JOHN WANGACHIE MALOBA.................DEFENDANTS

JUDGEMENT

This application is brought by Gregory Wamwee Wafula who claims that he is entitled to 2 acres of land, (formerly comprised in the larger L.R. NO. South Wanga/Ekero 788, which parcel of land was registered in the name of one Weyimi Wamwee, now deceased) registered in the name of the 3rd defendant as L.R. NO. SAOUTH Wanga/Ekero/2675, by virtue of having been in continuous and uninterrupted possession, occupation and open use of the said portion of a period in excess of 12 years and in a peaceful manner and for the determination of the following questions;

1. Whether the deceased, Weyimi Wamwee, who was the father of Philip Chebii and Aphonse Makokha, was the registered proprietor of L.R. NO. South Wanga/Ekero/788.

2. Whether the said Philip Chebii and Alphonse Makokha, disposed of 2 acres in L.R. NO. South Wanga/Ekero/788 to the plaintiff herein in the year 1970.

3. Whether the sale agreement leading to the disposal of the said 2 acres was valid in law.

4. Whether by taking possession of the said 2 acres, such possession of the plaintiff over the said 2 acres was adverse to the title holder’s interest that is the deceased, or that of his legal representatives.

5. Whether by having been in continuous, uninterrupted, peaceful, open use and exclusive possession of the said 2 acres for a period in excess of 12 years, the plaintiff, by such possession, acquired prescriptive interests over the said 2 acres.

6. Whether the 1st and 2nd defendants, can transfer title over the said 2 acres to the 3rd defendant, in light of the plaintiff’s over 12 years, and adverse possession of the same.

7. Whether the registration of the 3rd defendant as the proprietor over the said 2 acres is nevertheless, subject to the prescriptive rights acquired by the plaintiff therein.

8. Whether, after proving that he has been in continuous, uninterrupted, peaceful, open use and exclusive possession of the said 2 acres for a period in excess of 12 years, the plaintiff is entitled to be registered as the proprietor of the said 2 acres.

9. If this honourable court rules in favour of the plaintiff, whether the said plaintiff is entitled to mesne profits with respect to the said parcel of land.

PW1, the plaintiff states that, in the year 1970, his father purchased 2 acres out of former L.R. No. South Wanga/Ekero/788, registered in the name of one Weyini Wamwee, from his biological sons namely Philip Chebii and Alphose Makokha. He produced the following as exhibits PEx1 & PEx2, the green card, Sale Agreement in the Luhya dialect and a translation in the English Language of the said Sale Agreement respectively. That following the purchase of the 2 acres, he took immediate possession of the same and merged it with his parcel of land as the 2 were contiguous, and embarked on sugar cane plantation as is shown by the exhibits marked PEx3. That subsequently, the 1st and 2nd defendants, without notice to him, petitioned the High Court sitting at Kakamega for grant of letters of administration over the estate of the late Weyimi Wamwee and consequently sub-divided the former L.R. No. South Wanga/Ekero/788 into several parcels. That he had occupied and used the said 2 acres for a continuous period of over 12 years, and in a peaceful manner, he acquired prescriptive rights over the said 2 acres and thereby dispossessed the registered proprietor and/or any person claiming under him, ownership of the same. That the 1st and 2nd defendants had no legal capacity to transfer proprietary interest of the 2 acres to the 3rd defendant, since he had already acquired ownership of the same by prescription and thus there was no interest therein capable of being passed on. PW2 confirms that he was a witness during the sale agreement.

DW1, the 3rd defendant maintains that he purchased two (2) acres of land parcel number S. Wanga/Ekero/788 from the 1st and 2nd defendants herein PEx1 is a copy of the agreement. That at the time of purchase, the suit land was not occupied by the plaintiff and he legally took vacant possession from 2004 to-date and he has put a home with permanent structure, and he has planted sugarcane on the remaining portion which he uses exclusively. That subsequently sub-division was done and his portion of land was designated as land parcel number S. Wanga/Ekero/2675 and the plaintiff has never occupied the same. That the original owner of land parcel number S. Wanga/Ekero/788 Weyimi Wamwee was the cousin to Wafula Wamweye the plaintiff’s father who was the owner of land parcel number S. Wanga/Ekero/378. That the applicant herein stays and cultivates land parcel number S. Wanga/Ekero/378. That land parcel number S. Wanga/Ekero/788 and S. Wanga/Ekero/378 share a boundary and the applicant’s attempts to trespass into and push the boundary to in land parcel number S. Wanga/Ekero/788 with S. Wanga/Ekero/2675 have always been resisted by the respondents herein and he cannot allege to have a peaceful occupation or use of the suit land. The 3rd defendant appealed against the tribunal decision and was successful in Kakamega HCC No. 107 of 2009 PEx6. DW2 the first defendant corroborated the 3rd defendants evidence.

This court has carefully considered the evidence and submissions therein. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

Section 26 (1) of the Land Registration Act states as follows:

“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –

a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except – On the ground of fraud or misrepresentation to which the person is proved to be a party; or Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLR where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The court in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows:-

“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”

It is not in dispute that the registered owner of land parcel No. L.R. NO. SOUTH Wanga/Ekero/2675 is the 3rd defendant. The issue is whether or not he holds a good title by virtue of the plaintiff’s claim of adverse possession. Be that as it may, in determining whether or not to declare that a party has acquired land by adverse possession, there are certain principles which must be met as quoted by Sergon J in the case of Gerald Muriithi v Wamugunda Muriuki &Another (2010) eKLR while referring to the case of Wambugu v Njuguna (1983) KLR page 172 the Court of Appeal held as follows;

1. In order to acquire by statute of limitations title to land which has a known owner the owner must have lost his right to the land either by being dispossessed of it or by having continued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed of the suit land for a continuous period of twelve years as to entitle him, the respondent to title to the land by adverse possession.

2. The limitation of Actions Act, on adverse possession contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not the claimant has proved that he has been in possession for the requisite number of years.

3. Where a claimant pleads the right to land under an agreement and in the alternative seeks adverse possession, the rule is: the claimant’s possession is deemed to have become adverse to that of the owner after the payment of the last installment of the purchase price. The claimant will succeed under adverse possession upon occupation for at least 12 years after such payment.

The court was also guided by the case of Francis Gicharu Kariri - v- Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (Nairobi) the Court of Appeal approved the decision of the High Court in the case of Kimani Ruchire -v - Swift Rutherfords & Co. Ltd. (1980) KLR 10 where Kneller J, held that:

"The plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion)”.

So the plaintiff must show that the defendant had knowledge (or the means of knowing actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or any endeavours to interrupt it. In applying these principles to the present case, the plaintiff states that, in the year 1970, his father purchased 2 acres out of former L.R. No. South Wanga/Ekero/788, registered in the name of one Weyini Wamwee, from his biological sons namely Philip Chebii and Alphose Makokha. That following the purchase of the 2 acres, he took immediate possession of the same and merged it with his parcel of land as the 2 were contiguous, and embarked on sugar cane plantation. The 3rd defendant maintains that he purchased two (2) acres of land parcel number S. Wanga/Ekero/788 from the 1st and 2nd defendants herein PEx1 is a copy of the agreement. That at the time of purchase, the suit land was not occupied by the plaintiff and he legally took vacant possession from 2004 to-date and he has put a home with permanent structure, and he has planted sugarcane on the remaining portion which he uses exclusively. That subsequently sub-division was done and his portion of land was designated as land parcel number S. Wanga/Ekero/2675 and the plaintiff has never occupied the same. That the applicant herein stays and cultivates land parcel number S. Wanga/Ekero/378. That land parcel number S. Wanga/Ekero/788 and S. Wanga/Ekero/378 share a boundary and the applicant’s attempts to trespass into and push the boundary to in land parcel number S. Wanga/Ekero/788. The 3rd defendant appealed against the tribunal decision and was successful in Kakamega HCC No. 107 of 2009 PEx6. DW2 the first defendant corroborated the 3rd defendants evidence. I find that the plaintiffs’ have failed to establish that their possession of the suit land was continuous and not broken for any temporary purposes or any endeavours to interrupt it for a period on 12 years. I find that the decision awarding the land to the plaintiff was overturned by Kakamega HCC No. 107 of 2009 decision (PEx6). I find that the plaintiffs have failed to establish his case on a balance of probabilities and l dismiss it costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 3RD JULY 2019.

N.A. MATHEKA

JUDGE