[2017] KEHC 1006 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

{ENVIROMENT AND LAND COURT}

CIVIL APPEAL NO. 146 OF 2011

JOSEPH MBAABU MARETE.........................1ST APPELANT

PAUL KITHINJI MARETE............................2ND APPELANT

MARGARET NYOROKA MARETE.............3RD APPELANT

ZIPPORAH MARETE.....................................4TH APPELANT

VERSUS

JOSPHINE KINANU................................1ST RESPONDENT

GODFREY KIOGORA............................2ND RESPONDENT

JUDGMENT

Background

(Appeal from the judgment and decree of Hon. Mr. B. Ochieng – PM. In CMCC No. 552 of 2000 Meru)

The appellants were defendants while the respondents were 2nd and 3rd plaintiffs in CMCC. No. 552 of 2000 (Meru). In that case, the plaintiffs had sued the defendants for the following orders:-

(a) Perpetual injunction to restrain thedefendants their respective servantsof agents from entering Land Title No. Abothuguchi/Katheri/3072 or fromharvesting or from harvesting, usingor enjoying the tea growing on land ParcelNos. Abothuguchi/Katheri/3070, 3071 and 3072.

(b) Payment of compensation for the teaharvested by the defendants previouslyand until hearing and determinationof the suit.

(c ) Costs.

(d) Other, further or alternative reliefas may be just.

The defendant filed defence on 14/08/2000 denying. The plaintiff's claim and in the alternative sought to have the suit dismissed with costs.

The learned trial magistrate heard the first plaintiff who testified on behalf of all the other plaintiffs before closing their case. The defendants on the other hand called four witnesses in total and closed their case. The analysis of the judgment of the trial magistrate captured it all.

Submissions by the Appellants

The appellant submitted that the evidence they tendered to the effect that they have been in full control and occupation of the suit land since 1963 was un-controverted. They submit that the respondent's cause of action had ceased to exists by operation of the law. The appellants further submit that the suit was brought long after the 12 years had lapsed and that cause of action ceased by value of Section 7 of the Remuneration of Action Act.

They contend that Limitation is a legal issue and it need not be pleaded. They cited the case of Macharia Mwangi Maina & 87 others Versus Davidson Mwangi Kagiri CA No. 6 of 2011 Consolidated with CA No. 26 and 27 of 2011 (un-reported) where the court held that by allowing the appellants to take possession of the suit land developing the same, a trust was created and that the consent of the Land Control Board was not necessary. They therefore urged me to allow the appeal with costs.

Respondents Submissions

The Respondents through their counsel submitted that ground 1 of the Appeal was neither pleaded nor canvassed at the trial. It was not an issue for consideration before the trial court. He contends that parties are bound by their pleadings (Order 2 Rules 6 CPR)

The respondent's counsel also submits that the trial court analysed the entire evidence and considered the entire case before he arrived at a well founded judgment in right of the pleadings facts and evidence as tendered and the law. He supported the evaluation of the trial magistrate and the final judgment he arrived at. He sought to have the appeal dismissed with costs.

I find the issue being raised now was not pleaded or raised during the trial before the magistrate court. A claim under the Law of Limitation of Actions Act (Adverse Possession) is not only based on Law but is also a factual The Law on Limitation of Actions Act is premised in someone squatting on the land of the actual proprietor for more than 12 years. The date when the twelve years started running is a factual issue.

It is therefore incorrect to say that a claim on Limitation of Actions Act is an issue of law and need not be pleaded. That explains why a claim on limitation of actions Act (adverse possession) cannot be raised as a Preliminary Point since the same has to be proved by facts. As such, the first ground fails for lack of merit.

On the second ground, the appellants complain is that the learned trial magistrate failed to sufficiently analyse the evidence of the Appellants. I have looked at the judgment by the learned magistrate and find well reasoned.

The trial magistrate considered the testimony of the witnesses blow by blow and analysed each testimony with some degree of critique.

I find the learned trial magistrate properly analysed the evidence and directed his mind to the applicable law. The second ground of the appeal equally falls by the wayside.

On the third ground of the appeal, I am satisfied that decided the case based on the evidence and the law correctly. The judgment of the trial magistrate in my understanding is well reasoned. The third ground fails as well.

On the fourth and last ground, the Appellant contends that the trial magistrate erred in holding that the Sale Agreement between the appellants father was null and void for lack of a written Sale Agreement. The learned trial magistrate even went further and cited Section 3(3) of the Law of Contract Act Chapter 23 Laws of Kenya.

In that Section the Law is couched in mandatory terms. The law do not give the courts discretion to grant orders for disposition of an interest in land not in writing. The Appellants in this case did not produce any sale agreement for the alleged parcel of two acres. They are purporting was sold to them by the 1st respondent's husband in 1963.

By then she had not even been married by her late husband. The 1st appellant is making reference to an Oral Sale Agreement which her late husband told her.

That Oral Evidence for that disposition of an interest in land is null and void as held by the trial magistrate.

In the result, I find this appeal, lacking in merit and the same is hereby dismissed with costs to the respondents.

SIGNED AT GARISSA ELC COURT BY JUDGE E. C. CHERONO (MR)

DATED AND DELIVERED AT MERU ELC COURT THIS 7TH DAY OF DECEMBER, 2017 IN THE PRESENCE OF:-

K.Muriuki H/B for Gikunda Anampiu for Respondent present

E.Mwangi H/B for Murango Mwenda for Appellant present

HON. L. N. MBUGUA

ELC JUDGE