[2004] KEHC 714 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

HIGH COURT CIVIL SUIT NO. 72 OF 2002 (O.S.)

JANET KANUTHU KIMAMO ………………………………………….. PLAINTIFF

VERSUS

SYMON GATUTU KIMAMO ………………………………………… DEFENDANT

J U D G M E N T

This suit was commenced by Janet Kanuthu Kimamo (hereinafter referred to as the Plaintiff) by way of an Originating Summons Under Order XXXVI rule 3D of the Civil Procedure Rules. The Plaintiff claimed to have acquired 2. 8 acres being half of land parcel Thegenge/Karia/658 registered in the name of the Defendant Symon Gatutu Kimamo. She therefore sought determination of the following questions

(a) Has the Plaintiff been in occupation of half of land parcel Thegenge/Karia/658?

(b) Has the Plaintiff’s such occupation been adverse to the title of the Defendant’s to the land parcel mentioned herein above?

(c) Is the Plaintiff entitled to the title to half of land parcel Thegenge/Karia/658?

(d) Has the title of the Defendant’s to half of land parcel Thegenge/Karia/658 been extinguished by time?

(e) Who should pay costs of this suit?

The Plaintiff, Samuel Ndungu Ndirangu (P.W.2) and Michael Ndungu (P.W.3) all testified in support of the Plaintiff’s case.

Their evidence was that the Plaintiff and the Defendant’s mother are both wives of the late Kimamo Gatutu (hereinafter referred to as the deceased). During the land consolidation, the deceased had two parcels of land Thengenge/Gathuri/381 which was registered in the deceased’s name and Thegenge/Karia/658 which the deceased had registered in the name of his then infant son now the Defendant. The Plaintiff contends that the deceased registered the land in the Defendant’s name because he could not at that time be registered as owner of two parcels of land. The deceased and his two wives were all initially staying on land parcel Thegenge/Gathuri/381, and both were farming on Thegenge/Karia/ 658. Sometime in the 1970s, the Plaintiff moved to Thegenge/Karia/ 658 where she put up a house and occupied half the land. She however continued farming on Thegenge/Gathuri/381.

Sometime in 1991 the deceased died. The family then filed a succession cause and his estate which comprised land Thegenge/ Gathuri/381 was distributed and shared out between his two wives and a nephew. Thegenge/Karia/658 was not included in the deceased’s estate as it was not registered in his name.

In the meantime prior to the deceased’s death the Defendant had put up his house on Thegenge/Karia/658. The Plaintiff maintained that she contributed towards the purchase of Thegenge/Karia/658 and that the deceased had given her half portion of the land. She demanded that the Defendant transfers the half portion to him but the Defendant refused. The Plaintiff therefore brought this suit.

The Defendant for his part maintained that Thegenge/Karia/658 was given to him by his father i.e. the deceased and that the land was registered in his name as absolute owner. He stated that the Plaintiff moved to stay in Thegenge/Karia/658 because of a domestic disagreement which she had with the Defendant’s Aunt Njeri Gatutu. He maintained that Plaintiff’s movement to the land was only intended to be a temporary move. He denied having attempted to chase the Plaintiff from Thegenge/Karia/658 although he maintained that she had enough land at Gathuri. Defendant’s evidence was supported by that of his brother Lawrence Mureithi Kimamo (D.W.2), his mother Hannah Kagure Kimamo (D.W.3) and a neighbour Victor Wachira Karweru (D.W.4).

It was submitted on behalf of the Plaintiff that she was in adverse possession of half of Thegenge/Karia/658 and that her adverse possession began to run in 1976 when the Defendant who was the registered proprietor attained the age of majority, and that since then the Plaintiff has been in adverse possession for a period of over 12 years, and the Defendant’s title was therefore extinguished. The Plaintiff’s counsel relied on the following cases.

Wanje v/s Saikwa (No 2) [1984] KLR 284

Githu v/s Ndeete [1984] KLR 776

Wambugu v/s Njuguna [1983] KLR 172

The defence counsel on the other hand submitted that the Plaintiff’s suit cannot succeed as she has failed to prove her claim and had in fact departed from her pleadings. It was submitted that no adverse possession had been proved as the Plaintiff was occupying the land with the consent of the Defendant who has allowed her to remain in occupation as his stepmother. It was further submitted that the Plaintiff’s attempts to claim the land as belonging to her late husband and Defendant holding it in trust for him could not arise as the same was not pleaded.

Although it is apparent from the originating summons that the Plaintiff’s claim is based on adverse possession, the affidavit in support of the originating summons sworn by the Plaintiff on 13th May 2002 does not reveal a claim in adverse possession but depones that Thegenge/Karia/658 though registered in the name of the Defendant forms part of the deceased’s estate and ought to have been distributed equally among the deceased’s two houses in accordance with the Kikuyu customary law.

It is also deponed in the affidavit that the Plaintiff was put into possession of half of Thegenge/Karia/658 since 1958 and has lived on the land upto date. Going by this averment, the Plaintiff appears to be claiming to have entered the land with the permission of the owner whom she contends is the deceased. If this is so then the issue of adverse possession would not arise.

It is clear that the Plaintiff’s claim as reflected in the originating summons is not supported by the affidavit. In her evidence the Plaintiff claimed she contributed towards the purchase of the land and that the land was given to her by the deceased.

It is not disputed that the deceased registered Thegenge/Karia/ 658 in the name of the Defendant way back in 1958. The fact that the deceased made no effort to change the ownership of the land from 1958 to 1991 when he died, and the fact that the Defendant put up a permanent house on the land during the deceased’s life time without any objection from the deceased is a clear indication that the deceased did in fact give the land to the Defendant absolutely. Thegenge/Karia/658 therefore never formed part of the deceased’s estate nor did the Defendant hold it in trust for the estate of the deceased. Moreover the Plaintiff contradicted herself when she claimed she did not know that the land was registered in the name of the Defendant, and yet claimed it was so registered because the deceased could not be registered as the owner of two parcels of land. It is evident that both the Plaintiff and the Defendant’s mother were farming Thegenge/Karia/658.

It is also evident that the Plaintiff moved into the land with the authority of the deceased. It is clear that at this time the Defendant was a minor. Although the Plaintiff stated in paragraph 7 of the supporting affidavit that she moved onto the land in 1958, this was not supported by her evidence.

What is clear is that by 1976 when the Defendant attained the age of majority the Plaintiff was already on the suit land. The question is whether the Plaintiff was in adverse possession of the land.

In the case of Wanje v/s Saikwa (No 2)which was relied upon by both counsels, it was held that:

“in order to acquire by the statute of limitation land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it, and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.”

In the case of Jandu v/s Kirpal & Another 1975 EA225, Honourable Chanan Singh J stated that to prove title by adverse possession:

“The possession must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. It must be actual visible exclusive hostile open and notorious.”

In Benjamin Kamau Murima and others v/s Gladys Njeri (Nrb) C.A. No. 213 of 1996 (unreported)the honourable judges of appeal stated:

“One needs only to look at the position of the occupier and if it is found that his occupation is derived from the proprietor of the said land in the form of permission or agreement or grant, then such occupation is not adverse, but if it is not so derived then it is adverse.”

In this case there is no evidence that the defendant was dispossessed of the land or discontinued his possession. To the contrary the Defendant has developed the land though out of respect to his deceased father and the Plaintiff who is his stepmother he has not interfered with the Plaintiff’s occupation of part of the land. The Plaintiff’s occupation of this land is through the tacit acquiescence of the Defendant. It is neither hostile nor notorious, nor has there been any clear ouster of the Defendant by the Plaintiff.The Plaintiff’s occupation cannot therefore be considered to be adverse to the Defendant’s interest.

In the light of the above I determine the questions raised by the Plaintiff in her originating summons as follows:

(a) The Plaintiff has been in occupation of Thegenge/ Karia/658 pursuant to authority given by the deceased and acquiescenced to by Defendant.

(b) The Plaintiff’s occupation has not been adverse to the title of the Defendant to Thegenge/Karia/ 658.

(c) The Plaintiff is not entitled to the tile to half of Thegenge/Karia/658 (d) The title of the Defendant to half of land Parcel Thegenge/Karia/658 has not been extinguished with time.

The upshot of the above is that the Plaintiff’s suit fails and same is dismissed. There shall be no orders as to costs.

Dated signed and delivered this 16th day of November 2004.

H. M. OKWENGU

JUDGE