[2019] KEELC 2219 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KISII

CASE NO. 8 OF 2018

IN THE MATTER OF LIMITATION OF ACTIONS ACT, CAP 22 OF LAWSOF KENYA

AND

IN THE MATTER OF COMMUNITY LAND ACT, 2016

AND

IN THE MATTER OF THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF THE CIVIL PROCEDURE ACT, CAP 21 OF THE LAWSOF KENYA

AND

IN THE MATTER OF THE LAND PARCEL NO. SOUTH MUGIRANGO/BOSINANGE/199

BETWEEN

JAMES MAOSA OKENO......................................................PLAINTIFF

VERSUS

COUNTY GOVERNMENT OF KISII...............................DEFENDANT

R U L I N G

1. The Applicant filed the instant originating summons on 13th March 2018 under the provisions of Section 37 and 38 of the Limitation of Actions Act, Cap 22 of the Laws of Kenya and Order 37 Rule D of the Civil Procedure Rules. The Applicant also invoked Section 17(1) (b) of the Community Land Act 2016 and section 28 of the Land Registration Act. The gist of the Applicant’s claim was that he had become entitled to a portion of land measuring 100ft by 130ft in land parcel number South Mugirango/Bosinange/199by virtue of adverse possession. The parcel of land was registered in the name of Gusii County Council who the Government of Kisii, the Respondent succeeded following the creation of the devolved units under the 2010 Constitution.

2. The Applicant sought the determination of the following questions:-

1. Whether the Applicant is entitled to adverse possession of a portion of land measuring 100ft by 130ft in land parcel No. South Mugirango/Bosinange/199?

2. If the said Applicant is in adverse possession and should be registered as the proprietor of the said portion in place of the Respondent herein?

3. Who should pay costs of the summons?

3. The Applicant swore an affidavit in support of the Originating Summons to which he annexed a certified copy of the register for land parcel No. South Mugirango/Bosinange/199 which showed the subject land was registered on 7th July 1976 in favour of Gusii County Council and was reserved for the use of Bonyancha Market. He averred that he had been in occupation of a portion of the land measuring 100ft by 130ft where he had built some structures and that his occupation had been open and uninterrupted for over 48 years. He further averred that the land falls under the definition of community land and he sought for the portion he has occupied adversely to be hived out of the suit land and transferred to him.

4. The Respondent entered appearance and on 22nd February 2019 filed a preliminary objection dated 6th February 2019 on the following grounds:-

1. THAT this suit is not maintainable in law by dint of Section 41 of the Limitation of Actions Act Cap 22 Laws of Kenya.

2. THAT the concept of adverse possession does not apply against the Government of Kenya or any County Government.

3. THAT the application is incompetent and born out grave of misapprehension of law.

4. THAT the title herein is a first registration with overriding interest which is indefeasible by way of adverse possession.

5. THAT evidently the search annexed to the application by the applicant indicate Gusii County Council is the sole registered proprietor not community land as alleged by the applicant.

6. THAT the application as filed is inimical to the Respondents proprietary rights and in clear contravention of Article 63(2) d of the Constitution of Kenya 2010.

7. THAT the application as filed offends the principles of adverse possession and it’s brought malafides.

5. The Preliminary Objection raises points of law and I am satisfied it satisfies the test as to what qualifies to be taken as a preliminary objection as enunciated in the case of Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] EA 696 where Sir Charles Newbold, P in describing what constitutes a preliminary objection stated thus:

“…A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. The Respondents have contended the subject property was a public property owned by the County Government and that adverse possession cannot run against property owned by the government. The Limitation of Actions Act Cap 22 Laws of Kenya under Section 41 expressly excludes public land from the application of the provisions of the Act. This Court sitting in Nairobi in the case of Ravji Karsan Shanghani -vs- Peter Gakumu [2019] eKLR considered whether adverse possession could apply to land owned by the Government and at paragraph 15 of the judgment stated as follows:-

“15. The Defendant was allocated the suit land on 23rd April 1986 following his application for allocation. At the time of allocation, the land was unsurveyed and it constituted part of Government land and that is how the Government could alienate it. It is trite law that adverse possession cannot accrue against land that is owned by the Government. The Plaintiff contended he occupied the suit land in 1979 and had since that time effected various developments thereon which demonstrated his occupation and possession was adverse to the rights and interests of the registered owner. Thus, even assuming the Plaintiff had during the period 1979 to 1986 occupied and possessed the land under circumstances that could amount to adverse possession, my view is the Plaintiff could not adversely possess the land against the Government such that the Government’s rights and interest over the land could be extinguished. The doctrine of adverse possession is inapplicable where the land is public or trust land or is owned by the Government. Section 41 of the Limitation of Actions Act excludes Public Land from the application of the Act. Section 41(a) of the Act provides:-

41. Exclusion of public land

This Act does not -

a. enable a person to acquire any title to, or any easement over -

i. Government land or land otherwise enjoyed by the Government;

ii. Mines or minerals as defined in the Mining Act (Cap. 306);

iii. Mineral oil as defined in the Mineral Oil Act (Cap. 307);

iv. Water vested in the Government by the Water Act (Cap. 372);

v. Land vested in the County Council (other than land vested in it by Section 120(8) of the Registered Land Act (Cap. 300)); or

vi. Land vested in the Trustees of the National Parks of Kenya; or

7. In the present matter there is no dispute that the suit property is registered in the name of Gusii County Council and was so registered in 1976 and therefore constituted public land. Article 62(1) of the Constitution outlines the various categories of public land and under Article 62(1) (b) includes:-

“Land lawfully held, used or occupied by any state organ except any such land that is occupied by the state organ as lessee under a private lease.”

Article 62(2) of the Constitution provides as follows:-

(2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under –

(a) clause (1) (a), (c), (d) or (e); and

(b) clause (1) (b), other than land held, used or occupied by a national State organ.

8. The subject property is not community land as averred by the Plaintiff. It is public land within the definition of public land under the Constitution. The land is registered under Gusii County Council and was reserved for the specific purpose of Bonyancha Market. The Applicant’s occupation of any portion of land cannot entitle him to claim title by adverse possession. His occupation, if at all, could only have been at the pleasure of the Respondent and the Respondent was entitled to give him notice to vacate at any time. His possession however long could not operate to extinguish the title to the respondent.

9. The Originating Summons by the Applicant is misconceived and is incompetent. The Originating Summons is not sustainable. I uphold the preliminary objection by the Respondent. The Originating Summons dated 7th March 2018 is accordingly ordered struck out. I make no order for costs and each party will bear their own costs.

10. Orders accordingly.

RULING DATED, SIGNED AND DELIVEREDATKISIITHIS28TH DAYOFJUNE 2019.

J. M. MUTUNGI

JUDGE