[2022] KEELC 518 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC CASE NO. 126 OF 2014 (O.S)

JOSEPH MBOYA OKORE....................................................................PLAINTIFF

VERSUS

GORDON OLUOCH OLIMA....................................................1ST DEFENDANT

MONICA ATIENO MORO.......................................................2ND DEFENDANT

JUDGMENT

Joseph Mboya Okore, (hereinafter referred to as the plaintiff) has come to this court vide Originating Summons dated 14/5/2014 against Monicah Atieno Moru for the determination of the following issues:-

1. Whether Monicah Atieno Moru is the registered owner and/or proprietor of the said parcel of land known as KISUMU/MANYATTA ‘B’/91.

2. Whether the Applicant has been in actual, factual and active possession and in physical occupation and possession to date.

3. Whether the said occupation and possession has been peaceful, uninterrupted and has the same been known to or by Monicah Atieno Moru or any other person with an interest in the parcel of land.

4. What the cumulative and or total period or duration of such occupation to date is.

5. Whether the entry or ingress into the said parcel of land was with the permission of Monicah Atieno Moru or any person with an interest in the parcel of land.

6. Whether the applicant has fulfilled all and singular the requirements for a declaration for the extension of the registered proprietor’s interests in the said parcel of land and the registration of the same in his favour by virtue of the doctrine of adverse possession.

7. Whether a declaration should be made that the ownership and proprietary interests of the registered owner Monicah Atieno Moru be extinguished.

8. Whether a declaration should be made that the parcel of Land KISUMU/MANYATTA ‘B’/91 be and is hereby ordered to be registered in the name of the Plaintiff/Applicant Joseph Mboya Okore.

9. Whether the District Land Registrar, Kisumu District should be ordered to effect the change of ownership and proprietorship accordingly.

10. Whether the Respondent/defendant should meet the costs of this suit.

The application is based on grounds that all that parcel of land known as KISUMU/MANYATTA ‘B’/91 is currently registered in the name of Monicah Atieno Moru as per a copy of the extract from the register (Green Card) attached and marked “MAO1”. The Plaintiff/Applicant entered or gained ingress into the said parcel of land without the consent, permission and/or let by the registered owner and proprietor of the same and has remained in actual, physical and outright occupation and possession of the same to the exclusion of the registered owners and or proprietors of the same or any persons with an interest in the said owners since the registration in 1985. The said occupation and possession has been peaceful and uninterrupted for a period of more than twelve (12) years, in fact 45 years to date. The said occupation has been open, overt, clear, noticeable and hostile to the rights and interests of the registered proprietor or persons claiming interests in his estate by virtue of the fact that the plaintiff/Applicant is in occupation along with his family, he cultivates and tills the same which he has done year in year out to date. The occupation and possession relates to the entire parcel of land and not a portion thereof. The Defendant/Respondent and her family have alternative parcels of land which they currently occupy and that they never at any time occupied the suit property.

The Plaintiff seeks orders that he has met all and singular the requirements for the declaration of extinction of the registered proprietor’s rights and/or interests in the said parcel land and for a further declaration that the said interests be registered in the name of Joseph Mboya Okore or in his favour. The names of the said Monicah Atieno be deleted from the register and in its place, the name of Joseph Mboya Okore be inserted as the owner and proprietor of all that parcel of land known as KISUMU/MANYATTA ‘B’/91. The District Land Registrar should be ordered to alter the register to reflect Joseph Mboya Okore as the registered owner and proprietor of the said parcel of land forthwith. The Defendant/Respondent should bear the costs of this suit. The suit is supported by the affidavit of the Plaintiff wherein he reiterates the above.

The Respondent filed a replying affidavit stating that she filed Kisumu ELC No. 158 Of 2014 in which the present applicant has been served. That she doesn’t know Joseph Mboya Okore as he is not her relative and neither has she given him permission to reside in her land. That the said Joseph Mboya Okore has forcefully taken possession of her land saying that she is a woman and cannot own their ancestral land.

That the land was given to her by her father who bought it from the relative of the applicant. That the applicant is blatantly telling lies as he wants to sell her land to third parties. That the applicant has violently constructed semi-permanent structures in the said plot and he is letting them out saying that the land cannot be given to a stranger. That she obtained title of the suit title legally and the land legally belongs to her.

That the applicant has never been in peaceful occupation for over 12 years and in any event he has violently taken over possession of her land and without her consent. That the applicant has no registrable interest in the said land. That the alleged relatives of the applicant were buried in their homes and not in this parcel of land.

The suit was consolidated with Kisumu ELC Case No. 46 of 2016 and proceedings ordered to be conducted in KISUMU ELC Land Case No. 126 of 2014. The plaint in ELC no. 46 of 2016 was to be treated as defence whereas the defence by the defendant therein was to be treated as reply to defence herein.

When the matter came up for hearing the plaintiff, Joseph Mboya Okore testified that his true place of abode is MANYATTA village within Kisumu County more particularly on land parcel No. KISUMU/MANYATTA ‘B’/91. That he has lived in the said parcel of land since he was born in 1969.

That the parcel of Land known and registered as KISUMU/MANYATTA ‘B’/91 was registered in the name of Monicah Atieno Moru, as the time of filing this suit in year 2014, and soon afterwards the same got registered in the name of Gordon Oluoch Olima on 13th January 2015.

That he has been in actual, factual and active possession of the suit property since he was born in 1969.

That his occupation and possession has been and still is peaceful, uninterrupted and the same has been known the Defendant/Respondent, hence has been hostile to her interest. That in-fact his parents lived and are buried on the suit property, their names being Festus Okore Abinga and Jane Waudi Okore respectively.

That the said occupation, possession and open use/settlement has been for accumulative and a total period of over 12 years, infact 50 years.

That he has fulfilled all and singular, the requirements for a declaration for the extinction of the registered proprietor’s interest in the said parcel of land and registration of the same in his favour by virtue of the doctrine of adverse possession.

That he entered or gained ingress into the said parcel of land without the consent, permission or let by the registered owner and or proprietor of the same and that he has remained in actual, physical and outright occupation and possession of the same to the exclusion of the registered owner/or proprietor of the same.

That the said occupation has been open, overt, clear, noticeable and hostile to the rights and interest of the registered proprietor or persons claiming interests in his estate by virtue of the fact that he has built residential houses in the said parcel of land and which his family and him occupy, he has cultivated and tilled the same year in year out to date. That the occupation and possession relates to the entire parcel of land and not a portion thereof. That the Defendant/Respondent and his family have alternative parcel of land forthwith. He produced the green card, certificate of official search and photographs.

PW2, Jacinta Achieng Mboya, the wife to the plaintiff testified that her true place of abode is MANYATTA village within Kisumu County more particularly on Land parcel No. KISUMU/MANYATTA ‘B’/91. That she has lived in the said parcel of Land since she was married in 1999.

That all that parcel of land known and registered as KISUMU/MANYATTA ‘B’/91 was registered in the name of Monicah Atieno Moru as at the time of filing this suit but was later transferred to Gordon Oluoch Olima in 2015 when the case was still pending in court.

That she got married to the Plaintiff/Applicant in the year 1999 and by this time he and his family members were living in this parcel of land that is KISUMU/MANYATTA ‘B’/91. That they have built their house in this piece of land. That it is in this same piece of land that her father-in-law and mother-in-law were buried.

That they have five children and the suit land is where the children’s know as their home.

The Defence called 2 witnesses. DW1, Gordon Oluoch Olima relied on the statement dated 9/11/2020 which was adopted by the court as evidence in chief. He further testified that he is the owner of the suit property. He became the owner on 5/7/2014 and was registered in 2015. When he purchased the land, it had some tenants.

DW2, Monicah Atieno Moru an employee in the County Government relied on her statement dated 9/11/2020 and produced tittle deeds. On cross-examination by Mr. Ogonda learned counsel for the plaintiff, she states that she sold the land to Gordon Oluoch Olima in 2014. There is nobody staying on the land according to DW2.

I have considered the evidence and submission on record and do find that the suit parcel of land, Manyatta A/91 was adjudicated on 21/3/1985. The Register was opened on 18/3/1985 in Kisumu Manyatta B Registration area. The parcel of land measuring 0. 03 acres was registered in Registration sheet no. 5. The 1st entry is Osunu Gone of P.O. Box 1765 Kisumu. This was on 18/3/1985. The 2nd entry is Monicah Atieno Moru and title deed was issued immediately. This was on 14/5/99. The 3rd entry is Gordon Oluoch Olima being a transfer from the 1st defendant on the 13th of January 2015 and title deed was issued on the same date. I have considered the plaintiffs evidence and do find it credible that the plaintiff has been in occupation of the suit property since he was born and that he married PW2 IN 1999 when he was on the parcel of land and he is in occupation with his family. The 1st defendant does not even know the person in possession and this implies that when he bought the land he did not know the person in possession. The second defendant has not demonstrated that she has ever been in possession of the land. In the suit filed by Gordon Oluoch Olima on the 4th March 2016, he does not state when the plaintiff entered the land whereas the plaintiff is categorical that he was born on the land. Moreover, this suit was filed when the matter herein was pending in court and that even during the sale and transfer of the suit property to the 1ST defendant the suit was still pending in court.

I do find as a fact that the plaintiffs entry on the suit property was not permitted by the defendants. The plaintiff’s family entered the suit property long before he was born and that the plaintiff has lived to the suit property to-date. I do find that the plaintiff has been in actual and active and exclusive non permissive, uninterrupted possession of the suit property. The registration of the 1st defendant did not affect the plaintiff’s rights of adverse possession.

This law on Adverse Possession in Kenya is enshrined in Section 7 of the Limitation of Actions Act, which is in these terms:-

“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.”

The Limitation of Actions Act makes further provision for adverse possession at Section 13 that:

“ (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.

(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.

(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.”

Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration acts then the title is not extinguished, but held in trust for the person in adverse possession until he shall have obtained and registered an Environment and Land Court order vesting the land in him.

Section 37 provides that:-

“ (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited insection 37,to land or easement or land comprised in a lease registered under any of those Acts, 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.”

Adverse possession has been defined as a method of gaining legal title to real property by actual, open, hostile and continuous possession of it to the exclusion of its true owner for the period prescribed by law which is 12 years as per the Limitation of Actions Act, Cap 22 of the Laws of Kenya According to Halbury’s Laws of England, 4th Edition Volume 28, paragraph 768.

“No right to recover land accrues unless the land is in the possession of some person in whose favour the period of limitation can run. What constitutes such possession is a question of fact and degree. Time begins to run when the true owner ceases to be in possession of his land.”

The Court of Appeal in the case of Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another [2015] eKLR sought to define what constitutes adverse possession. The court stated as follows: -

“From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner. This concept of adverse possession has been the subject of many discourses and decisions of this Court. Suffice to mention but two, Kasuve v Mwaani Investments Limited & 4 others [2004] 1KLR 184 and Wanje v saikwa (2) (supra). In the first decision, the court was emphatic that in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of twelve years either after dispossessing the owner or by discontinuance of possession by the owner on his own volition. In the Wanje case, the Court went further and took the view that in order to acquire by statute of limitations a title to 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. Further, the court opined that a person who occupies another’s persons land with that person’s consent, cannot be said to be in adverse possession as in reality he has not dispossessed the owner of the land and the possession is not illegal.

What these authorities are emphasizing is that for one to stake a claim on a parcel of land on the basis of adverse possession, he must show that he entered the parcel of land more or less as a trespasser as opposed to by consent of the owner. In other words, his entry must be adverse to the title of the owner of the land. It is also possible to enter the land with the consent of the owner, but if the owner at some point terminates the consent and the applicant does not leave but continues to occupy the land and the owner takes no steps to effectuate the termination of the consent for a period of twelve years after then, such applicant would be perfectly entitled to sue on account of adverse possession. Besides adverse entry into the land, the applicant must also demonstrate exclusive physical possession of the land and manifest unequivocally the intention to dispossess the owner. The occupation must be open, uninterrupted, adverse to the title of the owner, adequate, continuous and exclusive as already stated. The burden of proving all these is on the person asserting adverse possession. So that a claim of adverse possession would not succeed if the entry to the land was with the permission of the owner and remains that way throughout, or before the permission is terminated or if before the expiry of the period, the owner of the land takes steps to assert his title to the land.

In the case of Samuel Miki Waweru v Jane Njeri Richu, Civil Appeal No. 122 of 2001, (UR), this court delivered the following dictum:

“…it is trite law that a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of, or in (accordance with) provisions of an agreement of sale or lease or otherwise. Further, as the High Court correctly held in Jandu v Kirpal [1975] EA 225 possession does not become adverse before the end of the period for which permission to occupy has been granted…”

In India Supreme Court decision in the case of Kamataka Board of Wakf –vs- Government of India & Others [2004] 10 SCC 779 where the court stated thus:-

“In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession by clearly asserting title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continues. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

I do find that the plaintiff has proved to have been in an open, peaceful, and continuos non permissive possession of the suit property for more than 12 years and therefore entitled to the orders sought and that the defendant s claim is defeated by laches as per the provisions of section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya.

I do grant the following orders in favour of the plaintiff thus that the Plaintiff has met all and singular requirements for the declaration of extinction of the registered proprietor’s rights and/or interests in the said parcel land and therefore I do grant a declaration that the said interests be registered in the name of Joseph Mboya Okore. The names of the said Monicah Atieno and Gordon Oluoch Olima be deleted from the register and in its place, the name of Joseph Mboya Okore be inserted as the owner and proprietor of all that parcel of land known as KISUMU/MANYATTA ‘B’/91. The District Land Registrar is ordered to alter the register to reflect Joseph Mboya Okore as the registered owner and proprietor of the said parcel of land forthwith. The Defendant/Respondent should bear the costs of this suit.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 24th DAY OF MARCH, 2022

ANTONY OMBWAYO

JUDGE

This Judgment has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.