[2007] KECA 276 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPEAL 173 OF 2003

JANET NGENDO KAMAU ……………………………………….. APPELLANT

AND

MARY WANGARI MWANGI ……………..…....……………….. RESPONDENT

(Appeal from the judgment and decree of the High Court of Kenya

irobi (Osiemo J.) dated 25th September, 2000

in

H.C.C.C. NO.578 OF 1995 (O.S)

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JUDGMENT OF THE COURT

This suit was commenced by Originating Summons by one James Kamau Kahuruka, since deceased, pursuant to the provisions of section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya, and Order 36 rule 3D of the Civil Procedure Rules. Upon the death of the original plaintiff, his widow, Janet Ngendo Kamau (Janet) was appointed the legal representative of his estate, and upon her application she was substituted as the plaintiff in this suit. She is the appellant in this appeal and has named Mary Wangari Mwangi, (Mary) as the respondent. The latter like the former was substituted as a party in the suit in place of her husband, Joseph Mwangi Kamau, who also died during the pendency of the suit.

The dispute between the parties is over a parcel of land known as Loc.1/Chomo/235, which as at the date of the suit, namely, 1995, was registered in the name of Joseph Mwangi Kamau. The Plaintiff’s case was that he had lived on the suit land openly, peacefully, and without let or hindrance, planted various crops, permanent and subsistence, for a period in excess of 12 years, and thus acquired title over it by adverse possession as entitled him to an order declaring him as owner and transferring title of it to him.

Joseph Mwangi Kamau, as defendant, filed an affidavit, in reply, conceding the long occupation, but averred that the occupation was with his consent. He added that at some point the plaintiff had offered to purchase the land, but was unable to raise the price which was demanded.

The parties by consent agreed that viva voce evidence be adduced, which was done. Janet testified and called her son Daudi Kaharuka Kamau (Daudi) as her witness. Their testimony was to the effect that they had lived on the suit land for over 30 years, and planted tea and coffee, among other crops, had erected several building structures on the land, and when James Kamau Kaharuka died, he was buried on the land. Neither the defendant nor any member of his family had raised any objection to their stay on the land, nor did they take any steps to evict them from the land. They denied they were aware of any move by the plaintiff to purchase the land from the defendant. They further testified that they knew of no other home other than the suit land.

Mary also testified. Her evidence was that indeed the plaintiff and his family had lived on the suit land for long. Although her husband was the registered owner of the land neither him nor herself had lived on the land. They lived initially at Kaptagat in Rift Valley but later moved to Eldoret because of the tribal clashes. She further testified that neither her husband nor any member of his family had taken steps to remove the plaintiff and his family from the suit land. Both herself and Fracia Nyambota Wakaruka, a witness she called to testify in support of her case, testified that the defendant and his family knew all along what was happening on the suit land, but took no steps to stop it. Mary however, testified that her late husband did raise objection to the plaintiff being buried on the land, but he was unsuccessful.

The trial Judge, Osiemo J, agreed with the plaintiff that his family had a long, peaceful and uninterrupted occupation on the suit property. He did not, however think that the limitation period had fully run in favour of the plaintiff. He reasoned that the land in question was initially registered in the name of one Kamau Mondo, who died in 1956. The defendant, who was his son applied for and was granted letters of administration of his estate, and using that grant he caused the land to be registered in his name in March 1989. The learned Judge then considered the family background of the parties. They were sons of step-brothers, namely Daudi Kaharuka and Kamau Mondo. The plaintiff was ordinarily entitled to and got a portion of his father’s share in parcel No. Loc 1/Chomo/230. Mary testified that the plaintiff sold that piece of land and settled on the suit land. The learned trial Judge reasoned that, although the plaintiff had been in occupation of the suit land for over twelve years, his occupation was not adverse because the defendant was not the registered owner before March 1989. The land was prior thereto in the name of Kamau Mondo. In his view therefore, the plaintiff had been in adverse possession for only 7 years as at the date of filing his suit. He therefore dismissed the suit on that account and thus provoked this appeal.

In this appeal only two issues have been raised, as follows:

(1) The learned Judge erred in fact and law in his interpretation and application of the law on adverse possession to the circumstances of this case.

(2) The learned Judge erred in basing his judgment and findings on an issue that was not pleaded by either party or canvassed by the parties.

In his submissions before us Mr. Mutiso for the appellant stated that the main issue in the appeal is whether adverse possession could run before grant of letters of administration to the defendant. In his view time would run against a person who would be entitled to apply for letters of administration. He submitted that the defendant died survived by his wife and children who could have but did not exert their rights over the land until 1995.

Mr. Maina for Mary did not respond to that submission. His submission was that the plaintiff was a licensee, a fact, in his view, which was confirmed by the defendant’s witness, Fracia Nyambota Wakaruka. It is common ground that the plaintiff had lived on the suit land for a period longer than twelve years. He had used it as if it was his own. As rightly pointed out by Mr. Mutiso the main issue in this appeal is whether time started running in favour of the plaintiff in 1989, or much earlier? If much earlier, whether the death of Kamau Kimondo interrupted it. The trial Judge, as we stated earlier, thought time started running against the defendant when he became the registered owner. We have considered the issue. In our view adverse possession commenced long before the defendant was registered as owner of the suit land.

Section 30 (f) of the Registered Land Cap 300 Laws of Kenya provides:

‘’ Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register.

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(f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or prescription.’’

The suit land is and has been at all material times registered under the Registered Land Act, Cap 300 laws of Kenya. Under section 30(f), above, rights in the process of being acquired under the Limitation of Actions Act, are in the nature of overriding interests and go with the land and not the registered proprietor. Change of ownership does not affect those rights as they attach to the land. In the circumstances as the plaintiff’s occupation started long before the defendant became the registered owner, his rights were in the nature of an overriding interest over the land and could be enforced at the expiry of the limitation period. In view of the conclusion we have come to, it follows that Osiemo J. erred in holding that adverse possession by the plaintiff started when the defendant became registered owner in March 1989.

The defendant did not rely on that ground as a defence against the plaintiff’s claim. Mr. Mutiso raised that as a second ground in support of his client’s appeal. True, the defendant relied on the ground that the plaintiff was a licensee, and therefore time would not run in his favour. Whether or not the plaintiff was a licensee is a question of fact. The plaintiff planted permanent crops on the land, namely 3000 tea bushes, and 300 coffee trees including ordinary trees. He built residential houses thereon and generally treated the land as his. That is why his family successfully caused the plaintiff to be buried on the land. Had he lived on the land as a mere licensee, the defendant no doubt would have taken steps to cancel the licence and evict him from the land.

We are of the considered view and so hold that the evidence on record militate against a finding that the plaintiff was a mere licensee.

For the foregoing reasons, it is our judgment that the learned trial Judge erred in fact and in law in not holding that the appellant’s husband had acquired title to the suit property by adverse possession. Had he considered the matter fully he would have found for the plaintiff.

Accordingly, we allow the appeal, set aside the judgment and decree of the superior court dated 25th September, 2000, and substitute therefor a judgment for the appellant as prayed in the Originating Summons filed in court on 28th February 1995. We, in the result, order that the land register be rectified by registering the appellant as proprietor in place of the present registered owner of the suit land. We award the costs of the appeal, and the Originating Summons to the appellant.

Dated and delivered at Nairobi this 29th day of June 2007.

S.E.O. BOSIRE

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JUDGE OF APPEAL

E.M. GITHINJI

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JUDGE OF APPEAL

W.S. DEVERELL

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR