[2024] KEELC 4102 (KLR)

Kithira v Kibiti (Enviromental and Land Originating Summons E003 of 2023) [2024] KEELC 4102 (KLR) (15 May 2024) (Judgment)

Neutral citation: [2024] KEELC 4102 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Enviromental and Land Originating Summons E003 of 2023

CK Nzili, J

May 15, 2024

Between

Sarah Kithira

Plaintiff

and

Silas Kibiti

Defendant

Judgment

1. The plaintiff took out an originating summons dated 27. 7.2023, claiming entitlement to one acre out of L.R No. Nyaki/Munithu/327, which is registered in the name of the defendant, by virtue of adverse possession. She averred that the suit land initially belonged to the late Irura Mungania, a grandfather to the defendant, which she has occupied since 1975, built a house, and has raised her children there, who have also erected their own houses.

2. At trial, she testified as PW 1 and called Peter Kirimi Irene Karimi Mithiri, Agnes Karamana, and Thuranira Rukunga as witnesses to sustain her claim. After adopting her witness statement dated 27. 1.2023 as her evidence in chief, PW 1 produced a copy of an official search for L.R No. Nyaki/Munithu/327, green card, chief's letter dated 19. 7.2023, and photographs of her developments therein as P. Exh No’s. 1-4, respectively. The plaintiff told the court the land she was demanding was equivalent to 1 acre, which was given to her together with Naitore Muriuki and M'Muiruki Sarah Kimene out of the initial land, following a subdivision of the land by their clan elders. PW 1 told the court the defendant's mother Sarah Kamenwa Magana, was also allocated some portion. She disputed the contents of a chief's letter attached to the defendant's paginated bundle referring to some elder's resolution out of a meeting held in 1992. Further, PW 1 said that she was not aware of or privy to the H.C Meru Succession Cause No. 67 of 1999; otherwise, her name may have been included without her knowledge. However, PW 1 said she was aware of a court order dated 25. 9.2013. She nonetheless clarified, that she could remember having been a third witness in the succession cause alongside her Kinaitore. PW 1 said that she has lived on the land since 1995 and before then her since 1975, and before then, her parents-in-law were already in occupation of the land where they were buried upon their death.

3. In cross-examination, PW 1 told the court that Sarah Kamenwa was her aunt. She said she came to the land after getting married to Robert Mutiri, a cousin to the defendant. She denied chasing the defendant away from the suitland. PW 1 clarified that she was a witness in the probate cause. She also went on to say that her homestead was on the suit land and the defendant had never evicted her, even though a notice to vacate was served upon her.

4. PW 2, 3, 4 & 5 confirmed that the plaintiff has been on the land since 1975 and continued living therein even after the death of her mother-in-law and husband, whose remains were interred in the suit land. PW 3, as the son of the plaintiff, clarified that the land under his mother's occupation was 1 acre, neighboring a portion belonging to the defendant, occupied by his tenant called Elias Thuranira. PW 5 told the court that M'Irura M'Mungania passed on in 1969. He confirmed that the plaintiff's late husband left her living on the suit's land, which she has extensively developed over the years. PW 5 told the court that other relatives of the plaintiff, including the defendant, occupy the adjacent land.

5. Silas Kibiti testified as DW 1 and adopted his replying affidavit and witness statement dated 17. 11. 2023 as his evidence in chief. Briefly, the defendant told the court that he was an administrator and one of the beneficiaries to the estate of the late M'Irura M'Mungania over L.R No. Nyaki/Munithu/327 now distributed as per the judgment delivered in Meru H.C Succession Cause No. 167 of 1999 on 4. 12. 1999.

6. DW 1 denied that the occupation of the suit land by the plaintiff has been quiet or peaceful due to the litigation over the years. DW 1 told the court that if the orders sought by the plaintiff were granted, the bonafide beneficiaries to the suit land would be evicted or deprived of their land. Further, DW 1 told the court that the plaintiff was out to deny the beneficiaries their birthright, where the remains of the deceased initial owner of the land were interred. He termed the claim by the plaintiff illegal and the suit bad in law. DW 1 said that he took over legal administrative duties from her late mother, Sarah Kamenwa Magana, the only child of the late M'Irura M'Mungania, who had filed Meru H.C Succession Cause No. 167 of 1999.

7. DW 1 told the court that her late mother used to travel from the Naari area to Munithu to till the suit land and had given the land to Ciomwirichia M'Erimba to till, only for one of his tenants to be attacked by group of clan members in 1989, among them the plaintiff claiming the land to belong to them while armed with panga's threatening to harm anyone who stepped into the land.

8. DW 1 told the court that the matter was reported to the area chief, who summoned the parties to his office, and a determination was made in 1992 as belonging to the late M'Irura M'Mungania, whose sole beneficiary was Sarah Kamenwa M'Irura in the presence of location clan elders. Similarly, DW 1 told the court that efforts to remove the plaintiff and all the other invaders from the suit land had been futile, following which her late mother filed a succession cause in 1999, which was finalized in 2019. DW 1 termed any developments by the plaintiff on the land as made during the pendency of the succession cause and contrary to his rights. To sustain his defense, DW 1 produced a copy of an elder's decision dated 7. 8.1992, judgment in Meru H.C Succession Cause No. 1672 of 1999, rectified certificate of grant, an official search dated 12. 4.2023, and orders dated 25. 9.2013 and 3. 4.2023 as D. Exh No. 1-6, respectively.

9. In cross-examination, DW 1 told the court that his place of residence was in Githongo since 1999, and the only time he utilized L.R No. 327 was when he was young. DW 1 said that the plaintiff was in occupation of the suit land before 1999 when the succession cause was filed but was only utilizing ¼ of the 4 acres of the suit land. He termed the plaintiff as a distant relative who was among the clan members who forcefully invaded the land in 1989. DW 1 said that the plaintiff, though summoned by the chief in 1992, declined to attend the meeting, and he has since been unable to evict her from his land.

10. Additionally, DW 1 said that his attempt to visit the land in 2013 in the company of the land surveyor was thwarted by the plaintiff, who chased them away, and she eventually obtained D. Exh No. (5), preserving the land until the completion of the succession cause.

11. DW 1 confirmed that he has been unable to utilize the land since 1989, where the plaintiff's late parents-in-law and her late husband are all buried. He denied that the plaintiff's occupation had been peaceful. DW 1 clarified that the plaintiff's mother-in-law, Sarah Kithira, was a second cousin to his late grandfather. In the probate cause, D.W. 1 told the court that the objectors were claiming the land as ancestral in nature. He said that he complied with D. Exh No. (5), hence the reasons that the plaintiff was not evicted from the suit land.

12. DW 2 was Haron Mbaabu, a brother to PW 1, who confirmed that the land had been decreed to the defendant in the probate cause but that they had been unable to utilize it after the plaintiff chased them away in 1989. DW 3 was Kagwiria M'Irimba. His testimony was that he and the plaintiff had not been utilizing the land since 1989 after their mother was chased away, who was a sister to the late M'Irura M'Mungania and had been given the land by her late father.

13. DW 5 was Sarah Chelagat, who told the court that he was last on the suit land in 1989, then under use by the defendant's late mother, Sarah Kamenwa.

14. At the close of the defence case parties were directed to file written submissions with the plaintiffs dated 16. 2.2024, isolating four issues for the court's determination. On the law of adverse possession, the plaintiff submitted that she had met the threshold of adverse possession, which ingredients she was able to attain by way of evidence. Reliance was placed on Ambrose Kirimi vs Emilio Marangu & others (2022) eKLR, Joseph Kamau Gichuki suing as the administrator of the estate of Gichuki Chege (deceased) vs James Gacheru Mukora & another (2019) eKLR, Stephen Mwangi Gatunge vs Stephen Edwin Onesmus Wanjau (suing as the administrator of the estates of Kimingi Wariera (deceased) and of Mwangi Kimingi (deceased) (2022) eKLR and Isaac Cypriano Shingore vs Kipketer Togom (2016) eKLR.

15. The defendant relied on written submissions dated 6. 3.2024 and isolated six issues for the court's determination. The defendant submitted that before this suit was filed, parties were in protracted litigation at the High Court in a succession cause, and the plaintiff obtained orders on 19. 9.2013. Her objection was eventually dismissed on 8. 3.2023, only to rush to this court on 27. 7.2023 after the eviction process by him commenced.

16. The defendant submitted that he is a registered owner of the land as an administrator following a rectified certificate of grant whose beneficiaries had no opportunity to defend themselves. Reliance was placed on Joseph Muriuki Kithinji vs Peterson Ireri Mwaniki & others (2012) eKLR.

17. On adverse possession, the defendant submitted following a protracted dispute alluded to above, time for adverse possession was interrupted, and any developments made by the plaintiff were during the pendency of the probate cause. Reliance was placed on Njeri Kimani (suing as the administrator of Nasser Kimani Njoroge (deceased) vs Edwin Onesmus Wanjau (suing as the administrator of the estate of Kimingi Wariera & Mwangi Kimingi (deceased) supra.

18. Further, the defendant submitted going by the case law of Raphael Kagali Muhindi vs Mary Jerotich Misoi (2021) eKLR, Wambugu vs Njuguna (1983) KLR 173, Ahmed Abdulkarim and another vs Members of Land and Mines & another (1958) E.A Benjamin Kamau Murima & others vs Gladys Njeri C.A No. 213 of 1996 Kasuve vs Mwaani Investments Ltd & others 1 KLR 184, Mtana Lewa vs Kahindi Ngala, Mwagandi (2015) eKLR, Harrison Omari & others vs Mareo Oriambu & others (2016) eKLR, Mbui vs Maranya (1993) eKLR, Samuel Kihamba vs Mary Mbaisi (2015) eKLR, the plaintiff's case fails for she obtained possession of the suit land by force, took advantage of the vulnerability of the only daughter of the deceased who were married elsewhere and violently chased her away in order to keep possession by violence and through threats to her person.

19. The defendant submitted that despite the threats and violent eviction, the initial beneficiary of the estate made a report to the local authorities for assistance and eventually filed a succession cause, out of which the plaintiff obtained interim orders to stay on the land until the orders were discharged in 2023. The defendant submitted that the plaintiff has not proved to the required standard all the ingredients of adverse possession other than mere possession of land for 12 years, which, as submitted above, was not peaceful at all and was through the aid of court orders. Reliance was placed on Mbui vs Maranya (supra).

20. Regarding family and relatives, the defendant submitted that at the probate court, the plaintiff testified as the 3rd interested party, stating that the deceased was her grandmother's brother and hence the land was family land registered in the name of M'Irura M'Mungania to hold in trust and therefor until the succession cause could be finalized. The defendant could not evict the plaintiff hence the aspect of adverse possession would not apply.

21. The court has carefully looked at the pleadings, the evidence tendered by the parties, and the law. The issues calling for my determination are whether the plaintiff is entitled to adverse possession and whether the probate cause interrupted the time for adversity.

22. Adverse possession occurs when a registered owner of land omits or neglects to take action against an intruder for a period of 12 years as provided under Sections 7,13 & 38 of the Limitation of Actions Act and Section 7 (d) & 28 (b) of the Land Registration Act. In Kasuve vs Mwaani Investment Ltd & others (supra) and Mtana Lewa vs Kahindi Mwangadi (supra), the court observed that the process springs into action by default or inaction of the owner and that the possession of the adverse possessor must neither be by force or stealth, nor under the license of the owner, it must be adequate, in continuity in publicity and in extent to show that the possession is adverse to the title owner.

23. In Wambugu vs. Njuguna (supra), the court held that the proper way of assessing proof of adverse possession would be whether or not the title holder has been disposed of or has discontinued his possession for the statutory period and whether or not the claimant has proved that he had the requisite number of 12 years. Further, the court held that dispossession of the proprietor that defeats his title are acts that are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. In Wanyoike Gathure vs Beverly (1965), E. A 514, the court observed that dispossession and discontinuance of possession must move together and that there can be no dispossession if the registered and rightful owner enjoys it.

24. In Samuel Kihamba vs Mary Mbaisi (supra), the court held that open and willing dispossession means that the owner knows, whether actual or otherwise has the means of knowing, that the claimant occupies the land. See also Kimani Ruchire vs Swift Rutherford and Co. Ltd (1980) KLR.

25. Interruption of time from running for adverse possession occurs when the actual owner makes an effective entry into the land, asserts his rights, drives out the intruder from his land, initiates a legal process for vacant possession or eviction, and or the intruder recognizes the actual owner's rights over the land. See Githu vs Ndeete (1984) KLR 776. Additionally, land claimed for adverse possession must be identified by way of size, portion, and locality out of the more significant portion held by the actual owner. See Wilson Kazungu Katana & others vs Salim Abdalla Bakshwein & antoher (2015) eKLR.

26. Adverse possession also entails animus possidendi. In Mbui vs Maranya (1993) eKLR, the Court of Appeal said that other than physical entry, the intruder must be without permission from the true owner of the land and must be with or maintained under some claim or color of right or title made in good faith to exclude the owner as well as other people by exercising dominion over the land to the exclusion of the owner. The court said the true owner must openly assert hostile title by his notorious overt acts and circumstances of the ouster. Further, the court said that interruption would include physical entry upon the land to cause it institution of legal proceedings to assert the right and acknowledgment by the intruder of the rights of the true owner.

27. A transfer of land by the registered owner does not interrupt time from running. Adverse possession runs against the land but not the title. Such right binds the predecessor and successor to the title. See Peter Mbiri Michuki vs Michuki Mwangi and another vs Mwangi (1986) KLR 328.

28. As to whether the filing of a probate clause interrupts adverse possession, a chief's letter or a demand letter does not amount to legal proceedings for assertion of right or eviction. See Titus Kigoro Munyi vs Peter Mburu Kimani (2015) eKLR.

29. The defendant takes the view that since 1999, parties have been litigating in the succession cause until 2019, when the plaintiff's objection was dismissed; hence adverse possession is inapplicable.

30. A probate court's mandate is to deal with the ascertainment of the free property of a deceased person, the beneficiaries thereof, and the mode of distribution. The filing of a succession cause did not amount to a suit for eviction of the plaintiff from the suit land. It was not a case of asserting the defendant rights over the land. The plaintiff, in his objection to the succession cause, was asserting an overriding right over the land by virtue of occupation since 1975.

31. In Isaac Cypriano Shingore vs Kipketer Togom (2016) eKLR, the court took the view that objection proceedings in a succession cause and a succession cause did not amount to an assertion of title, eviction proceedings or interruption of time for adversity.

32. In Benson Mukuwa Wachira vs Assumption Sisters of Nairobi Registered Trustees (2016) eKLR, the court cited with approval Amos Weru Murigu vs. Marata Wangari Kambi & another Kakamega H.C OS 33 of 2022 that an advocate’s demand letter and a chief's letter did not amount to assertion of title in law and could not, therefore, interrupt the passage of time for the purpose of computing the period of adverse possession.

33. The court observed that for there to be an interruption, the proprietor must evict or eject the trespasser because eviction was not always possible without a breach of peace or institution of a suit against the trespasser to stop time from running. See also Stephen Mwangi Gitunge vs Edwin Onesmus Wanjau (suing as the administrator of Estates of Kimingi Wariera & Mwangi Kimingi (supra).

34. Again, as to the change of ownership of the land in Registered Trustees Catholic Diocese of Muranga vs Micere Njao & others (2022) eKLR, the court held adverse possession runs with the land, irrespective of the change of ownership. The court said the taking out of succession proceeding by the defendant and the subsequent issuance of new titles to the resultant parcels of land was tantamount to nothing but an exercise in futility, since the new titles were tiger papers which did not stop time from running for purposes of adverse possession.

35. In Derick Masini Onami vs Joram Ibwana (2021 eKLR, the court held that a ruling in a succession cause could not be final or amount to res judicata on a claim for adverse possession since the court seized with jurisdiction was the Environment and Land Court and not the high court. The court cited Joseph Kamau Gichuki (suing as an administrator of the estate of Gichuki Chege (deceased) vs James Gacheru Mukora & another (2019) eKLR that the death of the registered owner of the land, does not top time from running for purposes of adverse possession. Further, the court cited Karuntimi Raiji vs M'Makinga M'Itunga (2015) eKLR that a claim for adverse possession is founded on the Limitation of Actions Act and survives the death of a registered owner of the land and binds a successor in title to the land. See Githu vs Ndeete (supra).

36. Moreover over, in Titus Mutuku Kasuve vs. Mwaani Investment Ltd & others (2004) eKLR, an issue had been raised just like in this case that the claim was too late when the Court of Appeal had already distributed the estate of the deceased owner and further, the failure to annex a copy of the title extracts. The court held that the proper defendant should have been the administrator of the estate of Ndolo and not the beneficiaries.

37. In this suit, the defendant's argument that he should not have been sued or the estate of the deceased has been distributed, therefore lacks substance. The plaintiff filed the suit claiming adverse possession since 1975, long before the defendant became the legal administrator of the estate of the deceased registered owner.

38. In my view the suit is properly before the court, for since adverse possession runs with the land, and the succession proceedings did not interrupt time or bar the plaintiff from filing her claim soon after the succession cause was determined. See Alex Njonjo Karu and others vs John Kamau Gitungo C.A Civil Appeal No. 278 of 2004 and Amos Wainaina vs Belinda Murai & others High Court NRB CC No. 811 of 1975.

39. There is no dispute that the registered owner of the land, M'Irura M'Mungania, passed on 27. 12. 1963. No one had petitioned for letters of administration of his estate until the Meru H.C. Succession Cause was filed in 1999 by the defendant's late mother. There was, therefore, no one in possession of letters of administration as a personal representative whom the plaintiff or her late husband could sue. The defendant's late mother, for all intents and purposes, was a beneficial owner until she obtained letters of administration. In Amos Weru Murigu vs Murata Wangari Kamba (supra), the court held that where a person is a beneficial owner or is beneficially entitled to land but is not registered as a proprietor of land registered under any statute cited in Section 37 of the Limitation of actions Act (Cap 22) the doctrine of adverse possession cannot be invoked. Further, the court said that a beneficial owner may not be in a position to effectively assert their title to the land and time cannot run against such a beneficial owner.

40. In this suit, by the time the plaintiff entered the land in 1975 and up to 1999, the defendant and his late mother were mere beneficial owners with no legal title to the land. Any efforts, therefore, to report the matter to the area chief and clan elders could not amount to an assertion of title or interruption of time from running in favor of the plaintiff. The defendant did not possess a superior right over the land so as to invoke the doctrine of violent entry or forceful occupation of the land.

41. In Benson Mukua Wachira vs. Assumptions Sisters of Nairobi, Registered Trustees (supra), the court observed that trespassers were trespassers. In common law, where a trespasser removes another trespasser who is in adverse possession of the title of the owner and continues to occupy the land, the period of adverse possession is not broken. The second trespasser is entitled to combine the period of trespass with his own. The plaintiff in this suit has averred and testified that her parents-in-law and husband were in possession of the land before she was married in 1975 and took over the possession.

42. D. Exh No. (2) shows that DW 1 took out letters of administration after his deceased mother on 11. 10. 2012 following which the interested parties applied for revocation of his grant. The plaintiff testified as I.P. "3" and asserted that she had been in occupation of the land for long. The defendant knew that the plaintiff was in occupation, albeit illegally. That is why his late mother reported the matter to the area chief and village elders. In the absence of letters of administration and a title deed, the defendant's late mother was directed to apply for letters of administration, so that she could acquire the capacity to assert rights over the land. The plaintiff, after a confirmed grant was issued in favor of the defendant, moved to court and obtained a court order preserving the suit property or stopping any eviction. So, at the issuance of the court order, the plaintiff was already in occupation of the land. The inhibition and status quo orders were only lifted on 3. 4.2023.

43. The demand letter dated 17. 8.2023 confirms the occupation of the land by the plaintiff soon after the late M'Irura M'Mungania passed on. If he passed on in 1967, therefore, it means that the entry into the suit land preceded 1999. The chief's letter dated 19. 7.2023 confirms such occupation for over fifty years. Therefore, it goes without saying that by the time the defendant became the registered owner of the land on 25. 7.2013, the plaintiff had been on the land for over 12 years without any interruption, openly notoriously, without force or secrecy, and with the full knowledge of the defendant. P. Exh No. (2) shows that Irura Mungania owned the suit land as of 12. 8.1970 and only came to the name of the defendant as an administrator on 25. 7.2013.

44. The defendant has asserted that developments or activities undertaken in the suit land by the plaintiff occurred during the pendency of the succession cause. The defendant did not object to the production of P. Exh No's 4. D. Exh No. 2 on page 18 indicates that PW 1 & 2 told the court of other cousins living on the suit land. Evidence of Mwirichia M'Irimba was that strangers had invaded the land since the defendant's mother was already married elsewhere.

45. The plaintiff, as I.P. "3," testified that her late parents-in-law and her husband used to live on the land before she was married there. Juxtaposing the totality of this evidence, my finding is that the plaintiff's version of entry and occupation appears more credible and consistent than that of the defendant. The buildings and developments on the suit land are not recent. If the same were erected after 1999 and before 2013, there was nothing stopping the defendant from applying before the court for stoppage of any permanent developments by the plaintiff on the suit land pending determination of the objection proceedings.

46. A notice to cease further developments would have been issued against the plaintiff between 1999 and 2013. Additionally, there is no evidence that the defendant's late mother undertook any developments on the land between 1967 and 1989 or took any action to assert her rights by way of registering them after her late father passed on in 1967.

47. Even if the defendant was alleging a beneficial interest in 1989, there is no evidence that between 1989 and 1999, the defendant asserted his rights and ejected the trespassers or invaders from the land. The defendant knew there were trespassers on the land, among them the plaintiff, between 1989 and 1999. The time for adversity was running against the land. DW 1 acknowledged that after the invasion, he discontinued possessing the land and let out the plaintiff to possess almost ¼ of the four acres of the total land now registered under his name on behalf of the beneficiaries.

48. In Benson Mukuwa vs. Assumption Sisters (supra), the court observed that a trespasser who promises to leave on the land he is trespassing on but does not leave cannot be said to acknowledge the title of the owner or interrupt time or stop time from running. The court said that acceptance must be by conduct or by declaration before the period of 12 years runs out. The court said that since the adverse possessor had been on the land for close to 15 years by the time the letters were sent, adverse possession had already crystallized and extinguished the title of the appellants to the suit after 12 years, making the acknowledgment, if any immaterial. The court held that the suit by the respondent had been instituted after 12 years of adverse possession had run its course.

49. In this suit, there is evidence that the plaintiff's entry into the land occurred in 1975 or thereabouts. There is evidence that the defendant's late mother was married in the Githongo area. In Titus Kigoro Munyi vs Peter Mburu Kimani (supra), the court held that under Section 7 of Cap 22, adverse possession affects not only the present holder of title but also their predecessors.

50. In Karuntimi Raiji vs M'Makinya M'Itunga (supra), the court observed that under Section 2 (1) of the Law Reform Act, upon the death of any person, all causes of action subsisting against him shall survive as the case may be for the benefit of his estate. A claim for adverse possession can, therefore, subsist against the estate of a deceased person. In Mwangi & another vs Mwangi (supra), the court held that the rights of a person in possession or occupation of land are equitable rights binding on the land, and the land is subject to those rights.

51. Adverse possession is established by drawing legal inferences from proven facts. See Kweyu vs Omunto C.A no. 8 of 1990. From the evidence tendered, it is not disputed that the plaintiff's entry into the suit land occurred before 1989 or thereabout and continued up to 1999. The activities undertaken on the land were adverse to those of the true owner. The same was not interrupted up to 1989 by anyone asserting a better title to the land. Between 1989 and 1999 there is no evidence of any interruption of possession or effective entry by the defendant to drive out the plaintiff from possession.

52. As of 2013, when the defendant became the registered owner, the plaintiff had been on the suit land for over 14 years if time started running in 1989 as a matter of right. The application of letters of administration in respect of the land of the deceased and its confirmation in 2013 did not interrupt the plaintiff's accrued right of adverse possession. See Rosa Wanjiru Mwago & another vs Lucy Wairimu Gichuhi & 2 others (2019).

53. The upshot is that I find the plaintiff has proved her suit to the required standard and is hereby decreed 1 acre of L.R No. Nyaki/Munithu/327 by virtue of adverse possession. The defendant shall subdivide the land and transfer one acre of it to the plaintiff within two months from the date hereof in default the Deputy Registrar of this court shall execute the documents. Costs to the plaintiff.Orders accordingly.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 15TH DAY OF MAY, 2024In presence ofC.A KananuPartiesMugambi for the defendantMwendwa for the plaintiffHON. C K NZILIJUDGE