[2019] KEELC 2399 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 766 OF 2013 (O.S)

KINYUA JACKTON.....................................PLAINTIFF

VERSUS

FRANCIS MUCHIRA KIURA.................DEFENDANT

JUDGMENT

INTRODUCTION

The plaintiff commenced this suit by way of an Originating Summons seeking to be registered as the proprietor of 3 acres from the suit property L.R. No. Ngariama/Rungeto/295 which he has acquired by adverse possession having been in continuous un-interrupted occupation for a period of over twelve years. The plaintiff also seeks an order that the defendant do transfer the said 3 acres to him and a permanent injunction order do issue restraining the defendant, their servants, personal representatives, successors and/or assigns from interfering with his quiet enjoyment of the suit property. The plaintiff also seeks costs of this suit. That motion is supported by an affidavit of the plaintiff sworn on 10th December 2012 in which he deponed that he has lived in the suit property for more than 20 years with his family continuously and without interruption. The plaintiff deponed that on 7th May 2001, Justice Tuiyot (deceased) ruled that he should sue the defendant for adverse possession and that he should not harass him at all. He stated that he was given 60 days to file suit which was dismissed on technicality.

The defendant filed a replying affidavit denying the plaintiff’s claim and all particulars of facts contained in the supporting affidavit. In the alternative, the defendant deponed that the plaintiff’s suit is incompetent, in that the plaintiff is seeking orders against the title to land No. Ngariama/Rungeto/295 which title is non-existence. The defendant also stated that the plaintiff has concealed material facts in that he has failed to disclose the number of suits he has instituted in respect of the suit property. He stated that the plaintiff has filed numerous cases being HCCC No. 6 of 2000 (O.S) Embu, Miscellaneous Application No. 5 of 1999 and HCCC No. 161 of 2007 (Embu). He also stated that the plaintiff filed numerous other cases being SRMCC No. 191 of 1997 (Kerugoya), HCCC No. 980 of 2003 (Nairobi), HCCC No. 100 of 2004 (Nyeri) and HCCC No. 17 of 2005 (Nyeri). The plaintiff stated that the matter of litigation over the original parcel is res-judicata, the same having been fully litigated in LDT No. 3 of 2008 (Gichugu) and the plaintiff evicted from L.R No. Ngariama/Rungeto/1265. The defendant deponed that the plaintiff is a vexatious litigant who should not be allowed to approach a Court of equity because of unclean hands.

PLAINTIFF’S CASE

During the hearing of this case, the plaintiff testified on oath and stated that this suit started in 1999 by way of a Miscellaneous Application No. 5 of 1999. The case proceeded until 2001 when the Judge, Justice Tuiyot (as he then was) issued a ruling whereby he has given two (2) months to file a claim for adverse possession. He stated that the defendant went to Nairobi and without disclosing to Court, obtained an order for eviction from the suit property L.R. No. Ngariama/Rungeto/295. That order was issued by Justice Ochieng. He filed an application challenging the said orders and was given an order returning him to the suit property. The defendant later came with many people and cut down his coffee, trees and destroyed his houses. He stated that he has been thrown out illegally. He stated that the order that has been put in the Lands office is the order to them by Justice Ochieng and that his is still outstanding. He stated that he entered the suit land in 1972 and stayed with the owner Peter Manga until 1974 when he passed on. He was left with his son Evans Kiura from 1974 to 1981. Kiura married in 1980 and died in 1981. He was left with his wife and children. Peter Manga’s brother Raphael Matumo went to Embu Court in 1982 and the case was concluded in 1986. The land was given to Raphael Matumo. He filed a case in Nyeri High Court and judgment was given. The land reverted to Kiura’s wife. The children of Kiura filed Succession Cause No. 1926 of 1997 (Kerugoya). He then filed an objection which stopped it. He filed the objection vide Miscellaneous No. 5 of 1999 which ended in 2001 and the Court gave him 2 months to file a case for adverse possession and he therefore filed the instant case. The plaintiff also stated that he had planted coffee, trees in 2 acres while cultivating one acre. He built 5 semi-permanent houses where he lived with his wife, children and grandmother. He stated that he had lived there from 1972 to 2004. He now lives with his wife’s father.

DEFENDANT’S CASE

The defendant did not attend Court during the hearing and the Court ordered the case to proceed Ex-parte.

ANALYSIS AND DISPOSITIONS

The plaintiff is seeking a declaration that he has acquired three (3) acres of the defendant’s parcel of land registration No. Ngariama/Rungeto/295 under Section 13 and 38 of the Limitation of actions Act Cap 22 laws of Kenya. It is now well settled that any person claiming to have acquired land under the doctrine of adverse possession must bring himself within the parameters of the statute law and the case law.

Section 7 of the Limitation of Actions Act provides as follows:

“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”.

Again, Section 13 of the same Act makes further provisions for adverse possession as follows:

“(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 Section 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse 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 a fresh 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”.

Section 137provides thus:

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

The principle underlying the doctrine of adverse possession was aptly put in the case ofKimani Ruchine Vs Swift Rutherford & Co. Ltd (1980) K.L.R where it was stated as follows:

“The plaintiffs have to prove that they have used this land which they claim as of right; nec vi; nec claim, nec precario ...… So the plaintiffs must show that the company had knowledge (or means of knowing actual or constructive) of the possession or occupation. It must not be broken for any temporary purpose or by any endeavous to interrupt it or by any recurrent consideration……”.

Again in Teresia Wachuka Gachira Vs Joseph Mwangi Gachira Civil Appeal No. 325 of 2003(unreported) the Court held thus:

“There is no proof of exclusive, continuous and uninterrupted possession of the land for twelve years or more before the suit against her was filed. Possession could have been by way of fencing or cultivating depending on the nature, situation or other characteristics of the land. Periodic use of the land is not inconsistent with the enjoyment of the land by the proprietor”.

From the pleadings and the list of documents which form part of this suit, the plaintiff in this case is no longer in possession and occupation of the suit property. The plaintiff was evicted from the suit property vide a Court order in LDT No. 3 of 2008. He was evicted on 9th October 2009 by Quick Line Auctioneers as can be shown from a letter attached to the defendant’s affidavit in reply to his Originating Summons dated 12th October 2009. For a claim of adverse possession to crystallize, the claimant must demonstrate that he has been in exclusive, continuous and uninterrupted possession of the suit land for a period of twelve (12) years.

The Court record shows that the plaintiff was lawfully evicted from the suit property through LDT No. 3 of 2008. The plaintiff’s occupation and possession does not satisfy the principles for a claim for adverse possession since his occupation and possession was interrupted when he was evicted through a Court order. His claim for adverse possession therefore becomes untenable. The other threshold for establishing a claim for adverse possession is that adverse possession does not apply where possession is by consent. In Wambugu Vs Njuguna (1983) K.L.R 172 holding No. 4, the Court held as follows:

“Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the licence is determined”.

From the ruling of Justice William Tuiyot (as he then was) which the plaintiff is hereby relying upon issued on 7th May 2001, the learned Judge, observed as follows:

“I have read the applicant’s application and his supporting affidavit. I have also read the respondent’s replying affidavit. ………… It is clear that the applicant has been in the deceased land since 1972 on invitation …….”

The evidence from the Court ruling is that the plaintiff was occupying the suit property on invitation. It is my finding that if the plaintiff was occupying the suit land on invitation, his claim for adverse possession is untenable since the occupation can only be adverse upon determination of the licence.

The upshot of my analysis is that the plaintiff has not established the threshold for acquiring three acres of the suit property through adverse possession. Consequently, this suit fails and the same is hereby dismissed with each party to bear his own costs.

READ and SIGNED in open Court at Kerugoya this 28th .day of June 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of: