[2016] KEELC 255 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 58 OF 2012 (OS)

JOSEPH K.M.M. SIMIYU………………PLAINTIF

VERSUS

MICHAEL KIBIWOT SERONEY….... DEFENDANT

J U D G E M E N T

INTRODUCTION

1. The defendant was the registered owner of LR. No. Kitale Municipality Block 15/Koitogos/5 measuring 9. 023 hectares. This property has since been subdivided and new titles issued. The plaintiff brought this suit against the defendant seeking an order that he had acquired two acres out of that property by way of adverse possession.

PLAINTIFF’S CASE

2. The plaintiff testified that he bought the two acres (suitland) from Hudson Wanyonyi Kisembe and that he has continuously stayed on the suitland since January, 1997. He has dug a borehole, planted avocado trees and has been growing maize on the suitland where he lives with his family.

3. In 2007, he learnt that the defendant wanted to sell his entire parcel of land. He pleaded with the defendant to let him settle the matter but that the defendant refused prompting him to file a suit seeking orders that he had acquired the suitland by way of adverse possession.

DEFENDANT’S CASE

4. The defendant stated that he learnt that the plaintiff had entered into a sale agreement with one Hudson Wanyonyi Kisembe in respect of the suitland. He told the plaintiff that Hudson Wanyonyi Kisembe had no land to sell to him. The defendant offered to sell a quarter of an acre to the plaintiff. The defendant allowed the plaintiff to occupy one of his houses but he has since refused to move out of the suitland.

ANALYSIS OF EVIDENCE, THE LAW AND ISSUES FOR DETERMINATION

5. There is no contention that the plaintiff is occupying the suitland which is part of the property which is owned by the defendant. The only issue for determination is whether the plaintiff has acquired the suitland by way of adverse possession.

6. The law regarding adverse possession is that one must have been in peaceful and continuous occupation of the land for a period of more than twelve years. In the instant case, the plaintiff claims to have been in possession of the suitland from January, 1997.

7. It is important to note that the plaintiff bought the two acres from one Hudson Wanyonyi Kisembe (Kisembe). This Kisembe had intended to purchase over 20 acres from the defendant. The transaction did not go through. Kisembe filed Kitale HCCC No. 9 of 1999 against the defendant in which he was seeking refund of the purchase price. This suit was however dismissed for want of prosecution but somehow the defendant and Kisembe entered into a settlement with the defendant in which the defendant agreed to refund Kshs.1,000,000/= to Kisembe and forego costs of Kshs.30,000/= which had been taxed in the suit. The defendant produced the agreement between him and Kisembe as Defence Exhibit 1.

8. Kisembe had already sold the suitland to the plaintiff before the settlement between him and the defendant. The plaintiff did not provide the agreement between him and Mr. Kisembe and this was for a reason which came out clearly when the defendant produced the agreement between the plaintiff and Kisembe as Defence Exhibit 1. The agreement between Kisembe and the plaintiff shows that the plaintiff bought the suitland on 23/12/2002.

9. As early as 7/8/2003 the plaintiff had been warned by the then advocates for the defendant that what he had purchased was a subject of a suit pending in court and that Kisembe was not the owner of the suitland and that he could not therefore pass a good title to the plaintiff. The defendant produced a letter dated 7/8/2003 [Defence Exhibit 2] from M/s. Sichale & Kidiavai Advocates addressed to the plaintiff warning him on the risk he was taking. A similar letter was written to M/s. C.T. Onditi & Co. Advocates who executed the agreement between the plaintiff and Kisembe [Defence Exhibit 3].

10. When the plaintiff filed this suit, he was well aware that he had not been on the suitland for more than twelve years and that is why he deliberately chose not to provide the agreement between him and Kisembe. The agreement was however produced by the defendant and a simple calculation shows that the period of 12 years had not elapsed from the time of purchase of the suitland on 23/12/2002 upto the time this case was filed on 9/4/2012. The plaintiff had been on the suitland for slightly over 9 years and he cannot therefore legally bring a claim for adverse possession.

11. The plaintiff in his bid to build up a claim went to the assistant chief of Naisambu who wrote a letter dated 12/3/2012 indicating that the plaintiff bought the suitland on 1/1/1997. This letter is attached to the originating summons by the plaintiff. The agreement between the plaintiff and Kisembe which the defendant produced as Defence Exhibit 1 was not denied by the plaintiff and it contradicts the allegation of the plaintiff that he bought the suitland on 1/1/1997.

DECISION

12. It is clear from the analysis of the evidence hereinabove that the plaintiff’s claim for adverse possession cannot be maintained. I find that he has failed to prove his claim. The same is hereby dismissed with costs to the defendant.

Dated, signed and delivered at Kitale on this 3rd day of November, 2016.

E. OBAGA

JUDGE

In the presence of Mr. Chebii for defendant and Mr. Wafula for Mr. Ondieki for plaintiff.

Court Assistant - Isabellah

E. OBAGA

JUDGE

3/11/2016