[2023] KEELC 22637 (KLR)

Jemjor v Mwaura (Enviromental and Land Originating Summons E09 of 2022) [2023] KEELC 22637 (KLR) (5 July 2023) (Judgment)

Neutral citation: [2023] KEELC 22637 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Enviromental and Land Originating Summons E09 of 2022

JM Onyango, J

July 5, 2023

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22 OF THE LAWS OF KENYA AND IN THE MATTER OF THE REGISTERED LAND KNOWN AS ELDORET MUNICIPALITY BLOCK 9/2865 AND IN THE MATTER OF AN APPLICATION FOR ORDERS BASED ON ADVERSE POSSESSION

Between

Charles Jemjor

Applicant

and

Jonah Kariuki Mwaura

Respondent

Judgment

1. The Applicant filed suit by way of originating Summons dated 23rd March 2022 seeking the following reliefs: -i.That a declaration be issued declaring that the Applicant and his agents have been in peaceful and continuous occupation of Land Reference Number Eldoret Municipality Block 9/2865 for a period in excess of 12 years and he has therefore acquired title of the same by way of adverse possession.ii.That a declaration be issued declaring that upon the expiry of 12 years the Respondent held Land Reference Number Eldoret Municipality Block 9/2865 in trust for the Applicant.iii.That an order be issued directing the Land Registrar Uasin Gishu County to cancel the defendant’s certificate of Lease issued on 4th April 2013 over land Reference Number Eldoret Municipality Block 9/2865 and in lieu thereof register the Applicant and issue him with a certificate of lease.iv.An order that the Defendant shall bear the costs of the suit.

2. Despite being served with the Originating Summons through his email address, the Respondent did not enter appearance or file a Defence. The matter was subsequently set down for hearing by way of formal proof.

3. The Plaintiff testified as PW1. He adopted his supporting affidavit sworn on 23rd March, 2022 as his evidence in chief. He told the court that sometime in 2007 he learnt that an entity known as Rehema Self-Help Project were selling some plots in Eldoret municipality. The defendant was the chairman of the said entity. He approached the Chairman for purposes of buying a plot and paid Kshs.2,000 as a deposit. He later paid Kshs.253,000 and he was issued with receipts for the two payments in respect of a plot with provisional number 139/Block 2865 which he produced as Plaintiff’s exhibits 1 and 2.

4. The plaintiff testified that he later went to the site with a surveyor who showed him the plot and fixed beacons marking his boundaries. He then fenced his plot, developed it and has been occupying it peacefully and continuously for more than 12 years. He produced photographs of the developments on the said plot as plaintiff’s exhibits 3(a)-(h). He visited the Lands Office and he was informed that the Defendant had registered himself as the proprietor of the suit property which was now known as land parcel No. Eldoret Municipality Block 9/2865. He produced a copy of the Certificate of official search as plaintiff’s exhibit 4.

5. He told the court that placed a restriction over the suit property. He later learnt that Rehema Self Help Group had closed their office in Eldoret and he does not know where they relocated to. However, he stated that he was aware that the defendant had relocated to Nyandarua and he occasionally contacted him through his mobile phone number. He told court that the defendant had visited him twice on the plot and congratulated him on the developments he has made but he has refused to transfer title to him prompting him to file this suit. He prayed the Defendant’s title be cancelled and that he be registered as the owner of the suit property by way of adverse possession.

Analysis and Determination 6. Having considered the pleadings, the plaintiff’s oral and documentary evidence as well as the submissions filed by the plaintiff’s counsel, the only issue for determination is whether he has met the threshold for adverse possession.

7. The law pertaining to adverse possession is contained in Section 7 and 38(1) of the Limitation of Actions Act which provides as follows:“Section 7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.Section 38(1).Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”

8. The courts have put the above provisions of the law and the doctrine of adverse possession into context. In the case of Celina Muthoni Kithinji (supra) the court held as follows:“The requirements of adverse possession in Kenya have also been set out in the case of Mbira v Gachuhi(2002)1 EALR 137 in which the court held that“…..a person who seeks to acquire title to land by the method of Adverse Possession for the applicable statutory period must prove non-permissive ,or non-consensual actual, open notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption.

9. The question that arises is whether adverse possession can arise from a purchase. This issue was considered in Public Trustee v Wanduru where Madan JA stated as follows: -“…. adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property because from this date, the true owner is dispossessed of possession. A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run.

10. Similarly, in Cathy Alucia Jebor Kiplagat v Vincent Komen (2018) eKLR the Court held that adverse possession can be claimed where the registered owner fails to complete the land sale process to frustrate the buyer who is in possession and occupation of the suit land.

11. In the instant case, the plaintiff testified that he paid the purchase price in full on 8th September 2007 after which he took possession of the suit land once the surveyor identified it and fixed the beacons. He then proceeded to fence it after which he developed it. Time therefore started running in September 2007. The plaintiff has been in exclusive, open, peaceful, continuous and uninterrupted occupation of the suit property for a period of more than 15 years and he has effectively dispossessed the registered owner thereof.

12. In the circumstances, I am satisfied that that the plaintiff has met the threshold for adverse possession and he is therefore entitled to the reliefs sought.

13. Accordingly, I enter judgment for the plaintiff and make the following final orders:a.A declaration is hereby issued that the Applicant has been in peaceful and continuous occupation of Land Reference Number Eldoret Municipality Block 9/2865 for a period in excess of 12 years and he has therefore acquired title of the same by way of adverse possession.b.A declaration is hereby issued declaring that upon the expiry of 12 years the Respondent held Land Reference Number Eldoret Municipality Block 9/2865 in trust for the Applicant.c.An order is hereby issued directing the Land Registrar Uasin Gishu County to cancel the defendant’s Certificate of Lease issued on 4th April 2013 over land Reference Number Eldoret Municipality Block 9/2865 and in lieu thereof register the same in the name of the Applicant and issue him with a Certificate of Lease.d.The Respondent shall bear the costs of this suit.

DATED, SIGNED AND DELIVERED VIRTUALLY VIA MS TEAMS PLATFORM THIS 5TH DAY OF JULY, 2023. ……………..J.M ONYANGOJUDGEIn the presence of:Mr. Murgor for the PlaintiffNo appearance for the DefendantCourt Assistant: H. Akidor.