[2019] KEELC 3005 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO 15 OF 2017

FORMERLY MERU ELC CASE NO. 170 OF 2014 (OS)

IN THE MATTER OF 1 ½ ACRE OF LAND WITHIN LAND PARCELNO.

MAGUMONI/THUITA/494 REGISTERED IN THE NAMES OF KITHINJI NJOKA, MURITHINJOKA, MUTEMBEI NJOKA

LOYFORD MURIUKI RIARA...........................1ST PLAINTIFF

ZIPPORAH MUTHONI RIARA.........................2ND PLAINTIFF

CATHERINE CIANDEKE..................................3RD PLAINTIFF

SUSAN CIAMWARI............................................4TH PLAINTIFF

VERSUS

KITHINJI NJOKA...........................................1ST DEFENDANT

MURITHI NJOKA..........................................2ND DEFENDANT

MUTEMBEI NJOKA......................................3RD DEFENDANT

JUSTIN NYAGA NKIINI...............................4TH DEFENDANT

JUDGMENT

1. In this suit, 2 suits are consolidated. These are Chuka ELC No. 7 of 2017 and Chuka ELC No. 15 of 2017. The consolidated suit has proceeded with Chuka ELC No. 15 of 2017 as the lead file.

2. PW1 Loyford Muriuki, the 1st plaintiff, asked the court to adopt his witness statement dated 21st April, 2017 as his evidence in this suit. The statement is reproduced herebelow without any alterations or corrections whatsoever. Any spelling or other mistakes are ascribed to the witness or his advocate. The undated witness statement reads as follows:

WITNESS STATEMENT

LOYFORD MURIUKI RIARA

I, LOYFORD MURIUKI RIARA of ID NO. 11610065 and P. O. BOX 229 Chuka in the Republic of Kenya do hereby wish to state as hereunder:-

That 1 the 1st plaintiff in this suit, whilst the 2nd plaintiff is my sister and the 3rd plaintiff is my sister in law wife to the late Tirus Murithi Riara who was my brother. Susan Ciamwari is also my sister in law being the wife of my late brother Eustace Marangu. The subject of this suit, land parcel No. Mugumoni/Thita/494 is registered in the name of the 1st, 2nd and 3rd defendants and the same measures 2. 63 Ha.

That whoever, my family has been settled on the subject land for a period of nearly 40 years occupying 1 ½ acres of land out of the aforestated, the same having been acquired by our late mother Agnes Kanyua Riara and our eldest brother Eustace Marangu from the late Ephantus Njoka who is the father of the 1st, 2nd and 3rd defendants back in 1967.

That the late Ephantus Njoka died before transferring the property to my brother and my mother, and thus when his widow filed a succession case, she only listed her sons and herself as the beneficiaries and the land was thus registered in their names without our knowledge.

That unfortunately my eldest brother Eustace Marangu died in the year 1989 and as at the time of this death, he had not yet recovered the land from the defendants. That the 1st, 2nd and 3rd plaintiffs and the interested party continued to live I that land without any interruptions from the defendants whatsoever until recently.

I was born on that land, am 46 years old and have never known of any other home. I am the last of all my mother’s children, and we have all married and set up our homesteads on a portion of land measuring 1 ½ acres within land parcel No. Magumoni/Thuita/494.

The defendants herein have been aware of our presence on that land, never once have they chased any of us away. They watched us burry my late mother and my late brothers namely Eustace Marangu and Tirus Murithi, and never once have they raised any complains or objected as to our claim and occupation of the piece of land therein. They were aware of our rights to the aforestated portion of land until recently when they got greedy and started selling off the parcel of land right to our doorstep.

They have been displacing us and cutting down our crops as well as demolishing our homes and even threatening us with violence. My sister in law’s homestead, Catherine Ciandeke has been completely alienated after the 1st, 2nd and 3rd defendants sold her portion of land to the 4th defendant. She is unable to access her crops and even her pit latrine.

It was thus necessary that we filed this suit in order to assert our rights to the parcel of land measuring 1 ½ acres within Magumoni/Thuita/494 and pray that the same be registered jointly in our names as well as Susan Ciamwari.

That is all I wish to state.

LOYFORD MURIUKI RIARA ………………………

DATED AT MERU THIS UNDATED DAY OF UNDATED 2017

3. In his oral evidence, PW1 told the court that his mother had bought 1 ½ acres. He admitted that he had no documentary evidence concerning this matter. The court notes that in his witness statement PW1 avers that the land the plaintiffs are claiming was bought by his mother and his late elder brother, Eustace Marangu. He told the court that his mother had paid Kshs.3,000/= which was a tidy sum in 1967. He disowned his statement that the suit land was bought by his mother and his deceased brother. He went on to tell the court that what he was saying concerning purchase of the land was not in his personal knowledge but was what his late mother had told him. I do note that PW5, Susy Ciamwari Eustace told the court that her husband Eustace Marangu only bought 1 acre at a consideration of Kshs.1,000/= from one Ephantus Njoka.4. PW2, Zipporah Muthoni Riara, asked the court to adopt her witness statement dated 21st April, 2017 as her evidence in this suit. The statement is reproduced herebelow without any alterations or corrections whatsoever. Any spelling or other mistakes are ascribed to the witness or her advocate. The witness statement dated 21st April, 2017 reads as follows:

WITNESS STATEMENT

ZIPPORAH MUTHONI RIARA

I am an adult female of sound mind working for gain as a peasant farmer in Magumoni location in Tharaka Nithi County within the Republic of Kenya.

That I am the 4th born of late Agnes Kanyua Riara and Riara Nkari. We moved to the land parcel No. Magumoni/Thuita/494 in 1967 when I was aged 7 years and we have lived there since. This land was bought by late mother from the late Ephantus Njoka. The land was measuring approximately one and half acres.

When we moved to the said parcel we started developing the land by constructing semi-permanent houses, planting coffee bushes, tea bushes, trees and banana plantations. When my mother and my brothers died, they were buried in the parcel we had occupied as is the tradition of our community.

That on the year 2014, the defendants herein encroached our portion and cut down the trees and even went further ahead to harvest our coffee and tea which we had planted. We immediately reported the matter to Chuka Police Station who later advised us to move to court. Subsequently, we instituted this case in 2014.

In late 2014, the 4th defendant herein even went further ahead and erected semi permanent structure our portion of land without our consent. That since the defendants entered our portion I have no other source of income.

The portion of land is ours and has been my home all my life. We have been peacefully living there for over 40 uninterrrupted years and we pray that the honourable court asserts our rights to the 1 ½ acres.

That is all I wish to state.

ZIPPORAH MUTHONI RIARA ---------------

DATED AT MERU THIS 21ST DAY OF APRIL, 2017

5. In her oral evidence, PW2 told the court that the suit land was 1 ½ acres in size and that it was bought by her mother and not by her brother Eustace Marangu, deceased. She told the court that what she was telling the court was what she had been told by her mother as she was only 7 years old when the suit land was bought by her mother. Although she was insistent that her mother bought 1½ acres and not 1 acre, she had no evidence to support the claim that her mother had bought the suit land or that what her mother had purchased was 1 ½ acres and not one acre.

6. PW3 and PW4 by and large relied on what they had been told by Agnes Kanyua Riara, the mother of the 1st to 3rd plaintiffs. PW3 sought to offer proof that Eustace Marangu the husband of the 4th defendant could not have bought the land because he was a minor in 1967. He, however, owned up that he was never a witness to any written agreement.

7. PW4 laconically told the court that the evidence he was tendering to court was fully reliant on what the mother of the plaintiffs had told him. During cross-examination he evinced no knowledge concerning apposite issues including purchase of the land by Agnes Kanyua, the plaintiffs’ mother and the area of the land she had bought. Indeed, he admitted that he was not conversant with any issues concerning the suit land.

8. PW4, Susy Ciamwari, the 5th defendant, asked the court to adopt her witness statement dated 5th June, 2015 as her evidence in this suit. The statement is reproduced herebelow without any alterations or corrections whatsoever. Any spelling or other mistakes are ascribed to the witness or his advocate. The statement, dated 5th June, 2015 reads as follows:

STATEMENT BY SUSY CIAMWARI EUSTACE

I am the above named person.

I live in Land parcel No. Magumoni/Thuita/494 and I occupy one (1) acre of the said land.

I have lived in the said land since 1979 when I was married by Eustace Marangu Riara – deceased.

It is my husband who bought the said one (1) acre of land parcel no. Magumoni/Thuita/494 in 1967 from one Ephantus Njoka Murua.

It was never transferred into my husband’s names.

My husband entered into the land in the year 1967 and started developing the same.

The defendants herein had the said land transferred to them to by way of succession in 1974 vide Chuka DM’s court succession cause no. 12 of 1973.

I have exclusively lived on the said one (1) acre of land parcel No. Magumoni/Thuita/494 since I was married.

I have extensively developed the said one (1) acre of land with the following:-

Tea Coffee bananas

Piped water subsistence crops – beans, maize

Gravellier trees sugarcane homestead

I have buried my husband in the said land. he died on 19. 5.1989.

My mother-in-law ONE Agnes Kanyua Riara is also buried in the said one (1) acre of land.

I have children who have built houses in the said land.

I would like the court to hold that I have acquired the said land by adverse possession.

That is all that I have to state.

DATED AT MERU THIS 5TH DAY OF JUNE, 2015

……………………………..

SUSY CIAMWARI EUSTACE

THE PLAINTIFF

9. By and large, in her oral evidence, PW4’s evidence was congruent with her witness statement. She was insistent that the suit land was brought by her deceased husband and that it measured 1 acre and not 1 ½ acres. She, however, did not produce evidence that her husband had bought the suit land.

10. DW1, Kithinji Njoka asked the court to adopt his witness statement dated 27th June, 2017 as his evidence in this suit. He also asked the court to adopt the witness statements of the 2nd and 3rd defendants, who were in court, as their evidence in this suit. He told the court that they had given him authority to make this intimation.

11. DW1’s witness statement is reproduced herebelow without any alterations or corrections whatsoever. Any spelling or other mistakes are ascribed to the witness or his advocate. The statement, dated 13th July, 2017 reads as follows:

STATEMENT OF KITHINJI NJOKA

My brother the 2nd and 3rd defendants and I are the registered owner of land parcel No. Magumoni/Thuita/494.

It’s a family land. We occupy the land parcel No. Magumoni/Thuita/494.

It measures 6 ½ acres.

We live in 5 ½ acres. The other 1 acre is occupied by one Susy Ciamwari Eustace (Susan Ciamwari) and the plaintiffs herein.

The plaintiffs do not occupy any part of our 5 ½ acres.

On 4th September, 2014, my brothers and I decided to sell ½ acre of land to one Justin Nyaga Nkinyi to enable get money to subdivide our land. We now occupy 5 acres of said land.

We entered into an agreement which was reduced into writing.

We had the land subdivided and the purchaser the 4th defendant herein took possession of the said ½ acre, fenced the same in the month he bought (September 2014) and planted his land with maize. He has also installed electricity, water and built a house therein.

He has extensively developed the said ½ acre.

It is not true that we have destroyed any of the plaintiffs’ properties.

The trees we cut were in our land and we had a permit.

The plaintiffs were aware of the sale of the ½ acres and they did not object.

About the death threats, the plaintiffs reported to the police who upon investigation found it was all lies.

We have no objection giving 1 acre of land to the wife of Eustace Marangu – one Susa Ciamwari Marangu who had bought land from our late father.

We have never made any attempts to burn the house.

They should have reported to the police.

The plaintiffs have no claim against us.

Their suit should be dismissed.

I am aware that Susan Ciamwari has filed Meru E & L Case No. 35 of 2015 (OS) claiming the said 1 acre.

I pray for the plaintiffs’ suit to be dismissed with costs to the plaintiffs.

DATED AT MERU THIS 13TH DAY OF JULY, 2017

SIGNED……………………………

(KITHINJI NJOKA)

12. I find that DW’s oral evidence, even during cross-examination was congruent with his witness statement.

13. I find that the oral evidence of DW2 and DW3 was congruent with their witness statements dated 27th June, 2017.

14. I opine that the issues raised in this matter, do not strictly speaking fall within the realm of adverse possession. The 1st to 3rd plaintiffs seek a declaration by the court that they be registered as proprietors of 1 ½ acres out of land parcel No. Magumoni/Thuita/494. The 4th plaintiff seeks a declaration that she has become proprietor of 1 acre of land out of Land Parcel No. Magumoni/Thuita/494 by way of adverse possession. All parties are in agreement that the parties have lived on part of the suit land for decades. The defendants support the 4th plaintiff’s case that the suit land was bought by her deceased husband. The plaintiffs’ counter this assertion by stating that the 4th plaintiff’s husband was a minor when this land was purchased by their mother in 1967.

15. 1st, 2nd & 3rd plaintiffs’ submissions are reproduced herebelow without any alterations or corrections. Any spelling or other mistakes are ascribed to the plaintiffs or their advocate. They state as follows:

YOUR LORDSHIP,

The 1st 2nd and 3rd plaintiff herein after referred to as the plaintiffs instituted this suit by way of an amended originating summons drawn on the 11th day of February 2015.

The plaintiffs prayed for the following orders;-

1. A declaration that LOYFORD MURIUKI RIARA, ZIPPORAH MUTHONI RIARA, CATHERINE CIANDEKE and SUSAN CIAMWARI the plaintiff herein and the interested party have become entitled by way of adverse possession, to 1 ½ acres out of all that parcel of land known as LR. MAGUMONI/THUITA/494 and all interests arising thereof.

2. An order for the rectification of the register and the plaintiffs and the interested party be registered as the sole joint proprietors of 1½ acres of land out of parcel of land known as LR MAGUMONI/THUITA/494.

3. An order that the Defendants herein to execute all the required instruments and or documents to effectuate transfer to the plaintiffs and the interested party 1 ½ acres of land out of land parcel NO.MAGUMONI/THUITA/494 and in default, this Honourable court do empower the Deputy registrar to so execute the transfer instrument on its behalf.

4. This Honourable court do make further orders as it deems fit and expedient to meet the ends of justice.

5. Costs of this suit be borne by the Defendants

MY LORD

The plaintiffs through Mr. Loyford Muriuki swore an affidavit on the 11th February 2018 stating as follows;

1. THATI have learnt with shock and disdain that the Respondent have sold the suit land to one JUSTIN NYAGA NKINYI and I have been seeing him around our parcel of land being shown around by the Defendants. It was upon inquiry as to the reasons for the trespass that I was informed that the aforesaid JUSTIN NKINYI had purchased ½ an acre out of our 1 ½ acres of land.

2. THAT days later he came on to the piece of land and cut down mature trees without any consultation to us he has hived off some part of the tea bushes and our access to the pit latrine by fencing within our homestead.

3. THAT the Respondents have cut down several mature trees on our side of the land without giving us any compensation for the same despite the fact that the same is our land. The degree of harassment by the Respondents is not only palling but a great contravention of our constitutional rights.

4. THATthe said JUSTIN NYAGA NKINYI has now put up a barbed wire fence which has maliciously prevented our access to our pit latrine and which fence has hived off approximately ½ acres together with the crops therein and which portion has been farmed by my sister in-law CATHERINE CIANDEKE.

5. THAT in the last few weeks we have been living as prisoners in our home without access to our home without access to our own facilities and not being able to enjoy the facility we have toyed for years to build.

6. THATour family has lived on the said land since 1970’s and today as we speak, the following members of our family live on the said land;-

a) Zipporah Muthoni Riara

b) Catherine Ciandeke

c) Susan Ciamwari

d) Loyford Muriuki

All the children of our late mother Agnes Kanyua Riara, who gave birth to us on the subject land and raised us, until we buried her on the same land.

7. THATthis land has been our home for over 40 years and we have assigned uninterrupted use and occupation of the same land, and we had never had any complaints from the Respondents until now.

8. THAT we reported the matter to the area chief in hope that we would talk out the misunderstanding and go back living in unity and harmony like we had in all those years but it was not to be so. (Annexed herein and marked LMR2 is the chiefs letter confirming the same.

9. THATwe resulted into reporting the death threats to the public vide OB NO.17/10/2/2015 who summoned the interested party daughter in-law to their offices to explain himself on the charges of threatening my sister CATHERINE CIANDEKE (the 3rd applicant).

The Respondents filled a replying affidavit sworn by KITHINJI NJOKA on the 02nd March 2015 stating as follows:-

1. THATland parcel NO. MAGUMONI/THUITA/494 is registered in the names of the 1st, 2nd and 3rd Defendants.

2. THAT the said land was registered in our names when we were minors vide CHUKA SUCCESSION NO. 12 OF 1973.

3. THATthe 1st, 2nd and 3rd Defendants live on the said land Parcel no. MAGUMONI/THUITA/494.

4. THATit is not true that the plaintiff occupy 1 ½ acre of land parcel no. MAGUMONI/THUITA/494 for decades as alleged by the plaintiffs.

5. THATit is not true that the1st plaintiff mother one Agnes Kanyua bought1 ½ Acres of land from our late father EPHANTUS NJOKA in the names of their elder brother one EUSTACE MARANGU.

6. THAT the truth of the matter is that one EUSTACE MARANGU who bought 1 acre of land parcel no. MAGUMONI/THUITA/494 which was registered in the name of our late father.

7. THAT the plaintiffs herein live in one acre of land with the permission of the late EUSTACE MARANGU.

8. THAT there is no evidence to show that the plaintiff herein are in occupation of 1 ½ acre of land parcel MAGUMONI/THUITA/494.

9. THATwe have already sold ½ acre of our land Parcel no. MAGUMONI/THUITA/494 to JUSTUS NYAGA NKINYI to enable us subdivide our land.

10. THAT the said NYAGA NKINYI has taken possession of the said land and has extensively developed it.

11. THAT the plaintiffs have been squatting on the 1 acre purchased by MARANGU.

12. THAT we have no objection to SUSANCIAMWARI EPHATUS getting her late husband said 1. 0 acre of land parcel.

YOUR LORDSHIP,

On the 30th January 2018, the parties agreed to visit the locus in quo in presence of the Executive Officer.

And the 13th September 2018 at 2;30 pm, the Executive Officer visited the locus in quoin presence of all parties and their Advocates.

The Executive Officer addressed the parties on the parties on the issues and took evidence of the plaintiffs who started as follows;

“I am the 1st plaintiff in this matter and speak on behalf of all plaintiffs, I was born in 1971 and I am now 47 years old. I have lived and brought up on this land parcel no. MAGUMONI/THUITA/494. I am the last born of my mother. We are all married and set up our homestead at this portion land measuring 1 ½ acres we have never known any other home other than where we live at the moment.”

We have been living in this land since 1967 before I was born. The land was acquired by our late mother AGNESS KANYUA RIARA and late elder brother Eustace Marangu from the late EPHANTUS NJOKA the father to the 1st 2nd and 3rd Defendants.

The father to the 1st, 2nd and 3rd Defendants. The father to the Defendants died before transferring land to us.

When our mother and two brothers died EUSTACE MARANGU and TIRAS MURITHI we buried them at this parcel of land and non of these Defendants complained we know no other home, we have built our homes and settled at this piece of land MAGUMONI/THUITA/494 without interruption for more than 50years and we wonder why they would like to displace us right now.

This problem started recently in the year 2014 after they realized that the land is registered in their names through a succession cause which was secretly filed. The Defendants started alienating our piece of land by selling part of the land to the 4th Defendants without our knowledge.

They have been displacing us and cutting down our crops trees, coffee bananas as well as demolishing our homes and threatening us with violence hence necessiating filing of this suit in 2014 at Embu High court which was subsequently transferred to ELC Court.

1st Defendant state that he was speaking on behalf of the Defendants. He further said that EUSTACE MARANGU the elder brother to 1st and 2nd plaintiff bought 0. 50 acres of land from their late father EPHANTUS NJOKA from LR. MAGUMONI/THUITA/0. 50 ACRES.

SUSA N CIAMWARI- INTERESTED PARTY stated that she is a wife of late EUSTANCE MARANGU who died in 19th may 1989. She got married in 1979. She lived in land no. MAGUMONI/THUITA/494 and occupy one acre.

It was her husband who bought it in the year 1967 from EPHANTUS NJOKA father to Defendants.

JUSTIN NYAGA NKINYI stated that he bought ½ acre from 1st and 2nd Defendants in 2014 which was exercised from MAGUMONI/THUITA/494.

And Executive officer took a walk and observed as follows;-

a) There was a mud house belonging to the 1st and 2nd plaintiffs mother and interested party mother in-law.

b) Semi permanent house constructed by the 1st plaintiff.

c) Temporary timber house belonging to 2nd plaintiff.

d) Mud house for the 3rd plaintiff wife to late TIRAS MURITHI encroached by the fence put by 4th Defendant.

e) Semi-permanent house for the interested party wife to EUTACE MARANGU.

f) Tea plantation, coffee, bananas.

g) Subsistence crops such as maize and beans.

h) Graveyard of their late mother and 2 brothers

i) Cowshed.

j) Trees some of which were cut down from the disputed portion of land.

k) The boundary separating the three plaintiffs, interested party and the Three Defendants.

l) Cowshed appeared to have been constructed by the Defendants recently.

m) All those houses are adjacent to one another.

And the E.O made the following findings;-

1. THAT the plaintiffs and members of their family including the interested party (SUSAN CIAMWARI) lives and have been living on the property in issue LR MAGUMONI/THUITA/494 for considerable long time without any interruption or any dispute until the year 2014.

2. The dispute started in 2014 when the Defendants sold a piece of land measuring ½ acre to subdivide from the land that the plaintiff consider to be their home to the 4th Defendant.

3. Apiece of land sold to the 4th Defendant has encroached the 3rd Plaintiff house.

ISSUES FOR DETERMINATION

1. WHETHER the plaintiff have been in actual possession of 1 ½ acres of land parcel no. MAGUMONI/THUITA/494?

2. WHETHER the plaintiffs have been in continuous exclusive and uninterrupted adverse possession of the land for more than 12 years?

3. WHETHER the said possession was exclusive without force or fraud?

4. WHETHER the plaintiffs are entitled to 1 ½ acres of land under the doctrine of

adverse possession?

AGREED ISSUES

1. THAT all the plaintiffs and the interested parties currently occupy 1. 0 acres of land parcel no. MAGUMONI/THUITA/494.

2. THAT they have been in occupation since the year 1967 to date and for the 4th plaintiff interested party since 1979 when she married.

3. THAT the Defendants have sold ½ acre out of land parcel no. MAGUMONI/THUITA/494.

FACTS

YOUR LORDSHIP, from the testimony of the plaintiffs the following facts have been established and proved;

1. THAT the plaintiff are in occupation of land parcel no. MAGUMONI/THUITA/494 and that they have been in such possession since the year 1967.

2. THATthe plaintiffs have they been occupying and utilizing 1 ½ acres of land Parcel NO. . MAGUMONI/THUITA/494 since the year 1967. When they were born and brought up until the year 2014 when the 1st 2nd and 3rd Defendants sold off ½ an acre to the 4th Defendants.

3. THAT the 4th plaintiff allegation that her husband Eustace Marangu purchased 1. 0 acres from Ephantus Njoka (father to 1st 2nd and 3rd Defendants) are un true and farfetched for the reasons THAT;-

· From the evidence of the plaintiffs and their witnesses it came out clearly that the year 1967 the said Eustace Marangu was a minor and still in primary school.

· That the Defendants and the 4th plaintiff are acting in connivance to create their own theory in order to evict the 1st 2nd and 3rd plaintiffs from their ½ acres of their land. M/S NYAMU NYAGA & CO. ADVOCATES has been acting for both the plaintiff and the Defendants in her testimony the 4th plaintiff admitted in cross examination that her Advocate was NYAMU NYAGA. He recorded her statements dated 27th June 2017, case summary dated 24th Day of August 2017, issues for determination dated 24th Day of August 2017 amongst other documents. It is clear that the Defendants and 4th plaintiff have been working in cahoots.

· That the plaintiffs have extensively developed on the subject suitland. They have constructed their homes thereon.

· That the 3rd plaintiffs house ha sand toilet has been encroached by a fence that was been put by the 4th Defendant.

· That the plaintiff occupation has been un hindered, notorious, undisturbed and uninterrupted since the year 1967.

CONCLUSION

Your Lordship, the plaintiffs and the 1st 2nd and 3rd Defendants have been living on land parcel NO. MAGUMONI/THUITA/494 in peace and without any dispute since the year 1967. Trouble begun when the 4th Defendant purchased ½ acre that has been in utilized of the plaintiffs.

It is our humble submissions that the plaintiffs have occupied 1 ½ acres of land of LR MAGUMONI/THUITA/494 for close to 50 years. That occupation has been open un interrupted, notorious and undisturbed and uninterrupted.

And it is the plaintiff prayer that the 1 ½ acre prayed for, be registered in the name of all plaintiffs.

DATEDAT CHUKA THIS 25TH DAY OFJANUARY,2019

FOR: KIJARU, NJERU & CO. ADVOCATE FOR THEPLAINTIFFS

16. The 4th plaintiffs’ final submissions are reproduced herebelow without any corrections or alterations. Any spelling and other mistakes if there are any, are ascribed to the 4th plaintiff and his advocate.

1. Your lordship the 4th plaintiff’s suit commenced as MERU CIVIL SUIT NO 35 OF 2015 (O.S). Upon E & L court commencing operations in Chuka the same was transferred to this court as Chuka E.L.C case no 15 of 2017. By Chuka E & L Court case no 15 of 2017 (O.S) the 4th plaintiff sought for an order of this court for a declaration that she is entitled to one acre out of LR; MAGUMONI/THUITA/494 registered with the 1st, 2nd and 3rd defendants. She claimed the one acre under the doctrine of adverse possession.

2. At the same time the 1st, 2nd and 3rd defendants filed Meru E & L Court case no 170 of 2014 (O.S). The 1st, 2nd and 3rd defendants at one point in time named the 4th plaintiff as an interested party. The 1st, 2nd and 3rd defendants on their hand were claiming 1. 50 acres out of LR; MAGUMONI/THUITA/494 which was and still is under the names of the 1st, 2nd and 3rd defendants. That Meru civil suit no 170 of 2014 was transferred to Chuka E & L Court as number 7 of 2017. The difference between the O.S by the 1st, 2nd and 3rd plaintiffs and the 4th plaintiff is that the 4th plaintiff claim only one acre while the 1st, 2nd and 3rd plaintiffs claim 1 ½ acres.

3. The defendants in both cases Chuka E & L court case no 15 of 2017 and Chuka E & L Court civil case no 7 of 2017 were the same. This situation prompted the 4th plaintiff who was named as an interested party in number 15 of 2017 to move the court for consolidation of the two suits vide the application dated 9th October 2017. The court allowed the application for consolidation by the 4th plaintiff. The mater proceeded with number 15 of 2017 as the lead file. It is at this point that the 4th plaintiff graduated from being an interested party and became the 4th plaintiff.

4. The 4th plaintiff’s case is that her husband one EUSTACE MARANGU purchased one acre in 1967 from EPHANTUS NJOKA MURUA. The 4th plaintiff started living on this land in 1978 when she got married to EUSTACE MARANGU. She has been living on this land from that time to date. The 1st , 2nd and 3rd defendants recognize and acknowledge that EUSTACE MARANGU the husband of the 4th plaintiff indeed purchased an acre out of LR; MAGUMONI/THUITA/494. The 1st, 2nd and 3rd plaintiffs also do not deny that the 4th plaintiff has been living on this land for all this time. The 4th plaintiff however has testified that the 1st, 2nd and 3rd plaintiffs wants her to move out of LR; MAGUMONI/THUITA/494. The 1st, 2nd and 3rd plaintiffs however do not deny that the 4th plaintiff is on one acre out of LR; MAGUMONI/THUITA/494.

5. The 1st, 2nd and 3rd plaintiffs case is that their mother (who is also the mother of the husband to the 4th plaintiff) AGNES KANYUA bought 1. 50 acres from EHANTUS NJOKA. Of interest to note is that all the plaintiffs state that they bought the land from one source that is EPHANTUS NJOKA MURUA. The 1st, 2nd and 3rd plaintiffs also have testified that they have occupied and cultivated 1 ½ acres out of LR; MAGUMONI/THUITA/494 from the time they were born. They are still on the land.

6. Your lordship there are two emerging issues for determination in this case which are;

(i) Whether the 1st, 2nd, 3rd and 4th plaintiffs have been in occupation of part of LR; MAGUMONI/THUITA/494 for a period in excess of twelve years and whether the occupation was open exclusive and without interruption?

(ii) Whether the 1st, 2nd, 3rd and 4th plaintiffs actually occupy in aggregate 1 acre or 1 ½ acres out of land parcel LR; MAGUMONI/THUITA/494?

(iii) Whether the 1st, 2nd, 3rd and 4th plaintiffs are entitled to be registered with 1 acre or 1 ½ acres out of land parcel LR; MAGUMONI/THUITA/494?

7. Your lordship the defendants jointly and severally are in agreement that the plaintiffs are in occupation of a portion out of the suit land. In fact the defendants are willing to transfer to the 4th plaintiff one acre out of LR; MAGUMONI/THUITA/494. They are in agreement that all the plaintiffs have been in occupation and use of one acre out of LR; MAGUMONI/THUITA/494 for a period in excess of twelve years. The 1st, 2nd and 3rd defendants are in agreement that the 1st, 2nd and 3rd plaintiffs have acquired some part of LR; MAGUMONI/THUITA/494 under the doctrine of adverse possession. The difference between the 1st, 2nd and 3rd defendants and the 1st, 2nd and 3rd plaintiffs is the contention by the 1st, 2nd and 3rd plaintiffs that AGNES KANYUA bought 1 ½ acres out of LR; MAGUMONI/THUITA/494 from EPHANTUS NJOKA. Seemingly if all the plaintiffs were claiming one acre out of LR; MAGUMONI/THUITA/494 the 1st, 2nd and 3rd defendants would not be having any problem in transferring the said acre to all the plaintiffs.

8. The 4th plaintiff on her hand accuses the 1st, 2nd and 3rd plaintiffs of cheating that AGNES KANYUA bought 1 ½ acres out of LR; MAGUMONI/THUITA/494. The 4th plaintiff’s stand is that it was EUSTACE MARANGU her husband who bought one acre and not AGNES KANYUA the mother of the 1st, 2nd and 3rd plaintiffs who bought 1 ½ acres. The 4th plaintiff can only be described as a very honest person. She could have colluded with the 1st, 2nd and 3rd plaintiffs to get a bigger portion. Despite that a human being is selfish and will always look at his/her goal the 4th plaintiff has decided to come out clean. She could have told the court that they occupy 1 ½ acres so that if they share she would definitely get a big share. She has decided to speak the truth and the truth should set her free.

9. Your lordship there is no doubt that the plaintiffs have been in exclusive occupation and use of a portion either of 1 ½ acres according to the 1st, 2nd and 3rd plaintiffs or one acre according to the 4th plaintiff for a period in excess of twelve years. The 4th plaintiff for example has been on this particular portion since 1978 a period that boils to 30 years. This fact is not denied by the defendants. On the other hand the 1st, 2nd and 3rd plaintiffs have been in occupation of the contested portion from the time they were born. The difference between the plaintiffs and the defendants is anchored on the portion that was bought and not whether they have been in occupation of the land for a period in excess of twelve years. The occupation was open, exclusive and uninterrupted. One point that came out from the 4th plaintiff is that the 1st, 2nd and 3rd plaintiffs were licensees of EUSTACE MARANGU. Although they were the family of the said EUSTACE MARANGU the arrangement with the mother of the husband to the 4th plaintiff was the mother and MURUNGI’s siblings were to move out of the one acre they had purchased upon purchasing their own land. They have never moved even after purchasing their own pieces of land.

10. In conclusion your lordship we urge this court to make a finding and hold that the 4th plaintiff has acquired an overriding interest in the nature of adverse possession in LR; MAGUMONI/THUITA/494. It is the 4th plaintiff’s submissions that she and the other plaintiffs have been in occupation of one acre out of LR; MAGUMONI/THUITA/494 and not one and half acres as alleged by the 1st, 2nd and 3rd plaintiffs. The 4th plaintiff wishes to be honest and transparent and void of any fraud. If she wanted to be fraudulent she would have joined the other plaintiffs to claim one and half acres instead of the one acre she is claiming. After all sharing one and half acres will give the claimant a bigger portion that when the portion being shared is one acre.

11. We rest our submissions and pray.

DATED AT CHUKA THIS……13TH ……DAY OF…DECEMBER,…..2018

DRAWN AND FILED BY

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I.C MUGO & CO ADVOCATES

17. 1st, 2nd, 3rd and 4th defendants’ submissions are reproduced herebelow without any corrections or alterations. All spelling and other mistakes, as they may be there, are ascribed to the 1st, 2nd, 3rd and 4th defendants and their advocate.

A. INTRODUCTION

1. Your Lordship, this suit ELC NO. 15 OF 2017 is consolidated withELC NO. 7 OF 2017.

In ELC NO. 15 OF 2017, LORFORD MURIUKI RIARA, ZIPPORAH MUTHONI RIARA and CATHERINE CIANDEKE are the 1st, 2nd and 3rd plaintiffs respectively while KITHINJI NJOKA, MURITHI NJOKA, MTEMBEI NJOKAandJUSTIN NYAGA NKINYI are the defendants.

One SUSAN CIAMWARI also known by the name SUSY CIAMWARI EUSTACEwas enjoined in this case by the 1st, 2nd and 3rd plaintiffs as an interested party.

2. In CHUKA ELC NO. 7 OF 2017, SUSY CIAMWWARI EUSTACE (who is enjoined as the interested party in this case) is the plaintiff while KITHINJI NJOKA, MURITHI NJOKA and MUTEMBEI NJOKA are defendants.

3. When this case was consolidated with CHUKA ELC NO. 7 OF 2017, LOYFORD MURIUKI RIARA, ZIPPORAH MUTHONI RIARA and CATHERINE CIANDEKEbecame the 1st, 2nd and 3rd plaintiffs respectively while SUSY CIAMWARI EUSTACE alias SUSAN CIAMWARI became the 4th plaintiff and the lead file became ELC NO. 15 OF 2017 (this case).

4. Your Lordship, the 1st, 2nd and 3rd plaintiffs’ claim is based on the Amended Originating Summons dated 11/2/2015. In the said Amended Originating Summons, the 1st, 2nd and 3rd plaintiffs pray for the Honourable Court to determine the following grounds:-

1. Have the plaintiffs occupied LAND PARCEL NO. MAGUMONI / THUITA / 494. (referred to as suit land) for more than 12 years?

2. Have the plaintiffs’ occupation been open, unhindered, notorious, undisturbed and uninterrupted for more than 12 years?

3. Have the plaintiffs been in occupation of the suit land since the year 1967?

4. Have the plaintiff become entitled to the suit land by way of adverse possession?

5. Have the defendants ever occupied the suit land?

5. The 1st, 2nd and 3rd plaintiffs in their amended originating summons therefore pray for issuance of the orders that:-

1. A declaration that LOYFORD MURIUKI RIARA, ZIPPORAH MUTHONI RIARA, CATHERINE CIANDEKE and SUSAN CIAMWARI the plaintiffs herein and the interested party have become entitled by way of adverse possession, to 1 ½ Acres out of all that parcel of land known as L.R NO. MAGUMONI / THUITA / 494, and all interests arising thereof.

2. An order for the rectification of the register and the said plaintiffs and the interested party be registered as the joint proprietors of 1 ½ Acres of land out of parcel of land known as L.R NO. MAGUMONI / THUITA / 494.

3. An order that the Defendants’ herein do execute all the required instruments and / or documents to effectuate transfer to the plaintiffs and the interested party 1 ½ Acres of land out of LAND PARCEL NO. MAGUMONI / THUITA / 494 and in default, this honourable Court do empower the Deputy Registrar to so execute the transfer instrument on its behalf.

4. This Honourable Court do make further orders as it deems fit and expedient to meet the ends of justice.

5. Costs of this suit be borne by the Defendants.

6. The said amended originating summons is supported by the further Supporting affidavit sworn by the 1st plaintiff LOYFORD MURIUKI RIARA on 11/2/2015.

7. Your Lordship, upon being served with the amended originating summons, the 1st, 2nd, 3rd and 4th defendants filed reply to the amended originating summons vide replying affidavits sworn by the 1st defendant KITHINJI NJOKA and 4th defendant JUSTIN NYAGA NKINYI on 27th June 2017 and filed in Court on 13/7/2017 respectively.

8. The interested party also filed her replying affidavit to the amended originating summons vide her replying affidavit sworn on 27th June 2017 and filed in Court on 13th July 2017.

9. As regards CHUKA ELC NO. 7 OF 2017, the plaintiff therein (now the 4th plaintiff in this case)claims to be declared the owner of one (1) acre ofLAND PARCEL NO. MAGUMONI / THUITA / 494by way of adverse possession and seeks the Court to determine the following questions:-

1. Whether the plaintiff has been in occupation of one (1) acre of LAND PARCEL NO. MAGUMONI / THUITA / 494 unhindered, notoriously, undisturbed and uninterrupted for more than 12 years.

2. Whether the plaintiff has acquired one (1) acre of land from LAND PARCEL NO. MAGUMONI / THUITA / 494 by way of adverse possession.

3. Whether the plaintiff should be declared as the owner and therefore be registered as a sole proprietor of one (1) acre of land to be excised from LAND PARCEL NO. MAGUMONI / THUITA / 494.

4. Whether the defendant should be ordered to execute all the relevant documents to facilitate the subdivision and subsequent transfer of the one (1) acre of land to the plaintiff and in default, the Executive Officer of this Honourable Court to sign all the relevant documents to ensure that the said one (1) acre of land is transferred and duly registered in the names of the plaintiff.

5. Who pays the costs of this Originating Summons.

10. After the pleadings were closed, all parties complied with Order 11 of the Civil Procedure Rules 2010.

11. It is also worth to note that before this case commenced hearing, the Court had made an order for the visit of the locus in quo which was duly complied with by the Court Administrator (E.O), the parties herein and their Advocates.

12. Initially, the Court had ordered that the suit herein be disposed off by way of written submissions but upon application by the defendants, the Honourable Court allowed this suit to be heard by way of viva voce evidence.

Pursuance to this Court’s Order that the suit herein be heard by way of viva voce evidence, the same commenced hearing on 29th October 2018.

13. Your Lordship, having done the above brief introduction, we shall now proceed to submit on behalf of the 1st, 2nd, 3rd and 4th defendants.

14. In our submissions herebelow, we intend to address the following:-

a) 1st, 2nd and 3rd plaintiffs’ case / evidence.

b) 4th plaintiff’s case / evidence

c) 1st, 2nd and 3rd defendants’ case / evidence

d) 4th defendant’s case

e) Issues for determination

f) The 1st to 4th defendants’ comments in respect of the report of the Scene visit by Court Administrator on 30/08/2018 in LAND PARCEL NO. MAGUMONI / THUITA / 494.

g) What appropriate orders should the Court give in this case?

We shall also make brief comments on the scene visit by the Court Administrator on 30/08/2018 and then conclude our submissions.

a) 1st, 2nd and 3rd plaintiffs’ case / evidence.

15. Your Lordship, at the time of hearing hereof, the 1st and the 2nd plaintiffs testified and adopted their statement as their evidence in Court.

16. The 1st, 2nd and 3rd plaintiffs called two witnesses namely PW3andPW4 who also gave evidence and adopted their statements.

17. Upon being cross-examined by the defendants’ Advocates, PW1 stated that 1 ½ acres was acquired by his mother AGNES KANYUA in 1967. He stated that he was not born at that time and that he was born in 1971. He stated that his brother EUSTACE MARANGU came into the land in 1967. He further told the Court that he did not have any sale agreement and he was not aware whether there was any agreement.

18. Upon being cross-examined on annexture No. 3 (a) in his supporting affidavit sworn on 3/11/2014 and filed in Court on 5/11/2014 which was a Notice of Motion and a supporting affidavit filed by his brother EUSTACE MARANGU to review the Court’s Orders in CHUKA DISTRICT MAGISTRATE’S COURT SUCCESSION CAUSE NO. 12 OF 1973, he could not explain why paragraph 3 of the sworn affidavit by EUSTACE MARANGU which indicated the size of the land he had bought and had been in occupation was erased and not legible.

19. When asked whether he could see that several portions of the said supporting affidavit sworn by EUSTACE MARANGU were erased and whether he had the original, he avoided the question by stating that he did not have the agreement. He denied having interfered with the document. PW1 never produced the original of the said annexture 3 (a) for the Court to see its contents.

20. PW1 further stated that the succession was filed secretly and he came to know of it in 2014. However, upon cross-examination by the defendants’ Advocates and upon being shown annexture 3 (b) in his supporting affidavit sworn on 5/11/2014, which was the ruling of the Court dated 27/5/1976, he never answered and instead he responded that he does not agree that his brother bought 1 acre.

21. PW1 admitted that the 4th plaintiff was the wife of EUSTACE MARANGU but when asked whether he is aware that she was asking for 1 acre bought by her husband, he responded that he can confirm that they live in the same compound.

22. PW1 ensured that he avoided the questions. He is not a truthful witness.

23. Further your Lordship, PW1 confirmed that there were several graves in the portion of the land they live and none of the graves was on the ½ acre sold to the 4th defendant. He further stated that it is true demarcation was being done to straighten the boundary although he did not agree with it.

24. PW1 confirmed that himself, the 4th plaintiff and ZIPPORAH had tea and they did not have any problem concerning tea. PW1 further conformed that there was no live fence when the Court visited the land. He stated that all what he told the Court about the purchase of 1½ acres of land is what his mother told him and he did not have any supporting documents.

25. Upon being cross-examined by the 4th plaintiff’s Advocate, PW1 told the Court that he could not produce in Court any agreement to show that his mother participated in the sale of the land. He denied that EUSTACE MARANGU had allowed them in the disputed portion of land so that they move out once they purchase their own land.

26. Upon being re-examined by his Advocate, PW1 insisted that they entered into the land in 1967and that it is his mother who bought the land. He told the Court that in 1967, his brother EUSTACE MARANGU was in Njuri Primary school. He stated that they have always been in occupation of the 1½ acre of land and that ½ acre belonging to the 4th defendant was part of their land. He further told the court that there is tea, toilet and coffee in the said ½ acre of land and that part of her sister-in-laws house is in the ½ acre. He stated that the trees which were in the ½ acre of land were cut down by the 4th defendant and his sister –in-law CATHERINE CIANDEKE reported the matter to the police when the property was destroyed.

27. Although PW1 told the Court that there was OB number which was part of his documents, none was produced in court.

28. PW2 also gave evidence in Court. She adopted her statement. She stated that she knew the 4th plaintiff was married in 1978. She stated that the 4th plaintiff was found on the land when she was married.

29. Upon being cross-examined by the counsel for the defendants,PW2 told the Court that she was 7 years in1967. She stated that she never witnesses any agreement between her mother and the 1st, 2nd and 3rd defendants’ father because she was not there.

30. PW2 stated that it is her mother who bought 1½ acreof land. She stated that she has never taken the surveyor because the land was intact.

31. PW2 further stated that there was encroachment of property but upon being asked by the defendants’ advocates whether anybody was charged, she stated nobody was charged.PW2 stated that he sister – in- law house had been affected and her latrine taken by the 4th defendant.

32. As regards the graves, PW2 stated that all the graves are on the portion they occupy. PW2 further told Court that there were no graves in the ½ acre of land and that they live with the wife of EUSTACE MARANGU on the land. PW2 further told the Court that there have not been blocked at all.

33. On being cross-examined by the 4th plaintiff’s Advocates PW2, stated that she does not have any document to show that it is her mother who bought a portion of PARCEL NO. 494 but insisted that it is her mother who bought the land and not EUSTACE MARANGU.

34. PW2 further told the Court that EUSTACE MARANGUwas in school. She stated that only males were being registered with land. PW2 further told the Court that in1967,EUSTACE MARANGU was in Njuri Primary school and he married in 1978. She stated that her mother was a business lady but did not have documents to prove that he mother was a business lady. She stated that EUSTACE MARANGU was not employed. She insisted that her mother bought 1 ½ acre and not 1 acre. She denied that they were not pushing the 4th plaintiff out of the land and that she was the wife of their brother and they love her so much.

35. Upon being re-examined by her advocate,PW2 stated that they did not go to Court because the 4th plaintiff was being given 1 acre but because of the intruder. She stated that the 4th defendant has not fenced the land.

36. However, on being re-examined further,PW2 stated that there is a barbed wire put up in 2014. PW2 stated that they have lived in the land peacefully since 1967. That they all live in the land together with the 4th plaintiff and nothing belonging to the 4th plaintiff was touched.

37. The 1st, 2nd and 3rd plaintiffs also called PW3. PW3 stated that he knew both the plaintiffs and the defendants. PW3 adopted his statement.

38. Upon being cross-examined by the defendants’ Advocates, PW3 stated that he knew EPHANTUS NJOKA and AGNES KANYUA RIARA. He stated that AGNES KANYUA RIARA told him that she had bought 1½ acre of land from EPHANTUS NJOKA. He stated that he was not there when land was bought.

39. PW3 stated that he knew ELISIUS NGAI MURUA (DW2) brother to EPHANTUS NJOKA.

40. PW3told the Court that he was present when the land was measured but did not have documents to confirm the measurements because he was not the owner of the land. He stated that EPHANTUS NJOKA died before he could transfer the land to AGNES KANYUA RIARA. PW3 stated that the intention was to register the land in the name of AGNES KANYUA RIARA and not in the name of EUSTACE MARANGU, husband to SUSAN CIAMWARI. He stated that AGNES KANYUA RIARA did not tell him about any witness when she bought 1½ acre of land. He told the Court that she never told him that there was any written sale agreement between her and EPHANTUS NJOKA.

41. PW3 further told the Court that AGNES KANYUA RIARA never told him about the purchase price. He further told the court that in 1967, MARANGUwas in standard 7 and could not buy land. He disputed that MARANGU was a grown up in 1967. PW1 stated that he was circumcised together with MARANGU in December 1967and he had not worked. He told the court that he did not have any documents to show that in 1967, MARANGU was in standard 7 or in primary school.

42. Upon being re-examined by the plaintiffs’ advocates, PW3stated that the plaintiffs occupy 1½ acres of land and that land was measured. PW3 reiterated that AGNES KANYUA RIARA intended the land to be registered in her name.

43. The 1st, 2nd and 3rd plaintiffs also called PW4 as their witness. In his evidence, in Court, PW4 stated that he used to visit the plaintiffs in 1960s when he was a young boy. He told the court that in 1967, he was 7 years having been born on 14/04/1960. PW4 stated that he has never seen a written agreement relating to sale of the subject land.

44. In a nutshell, PW4stated that all what he can say is whatAGNES KANYUA RIARA told him. On being asked whether he has ever taken any measurements of the subject land,PW4 stated that he has never done so. He stated that it is AGNES KANYUA RIARA who told him about the area of the land. He told the Court that it is not possible to tell the size of the land by looking and seeing. He told the Court that properties were destroyed but he never recorded any statement with the police about the destruction. He did not have any statement recorded by the plaintiffs in the police station either.

45. PW4 could not remember the year AGNES died. He stated that he was 48 years when AGNESdied. He stated that he does not agree that MARANGU bought 1 acre of land from NJOKAbecause he (MARANGU)was in school in 1967. PW4 stated that he had no evidence to prove or show that MARANGUwas in school in 1967. He also told the Court that MARANGU was 15 years older than him.

b) 4th Plaintiff’s Case / Evidence

46. The 4th plaintiff’s case is that she is the wife to the late EUSTACE MARANGU.

In her evidence in Court, PW4stated that it is her husband who bought the land from the 1st, 2nd and 3rd defendants’ father one EPHANTUS NJOKA and that her husband paid EPHANTUS NJOKA Kshs. 1,000/=. She stated that the land her husband bought was 1 acre in size.

47. PW5stated that her husband bought the said 1 acre of land in 1967. She further stated that she was married by EUSTACE MARANGU in 1979 and it is her husband who told her that he had bought the land in 1967. She further told the Court that her husband informed her that he had allowed the 1st, 2nd and 3rd plaintiffs in his 1acre so that they could later vacate his land when they buy theirs. She stated that the 1st to 3rd plaintiffs are lying that the land was bought by their mother in the name of her husband as a trustee for the family.

48. PW5 further stated that her husband, her husband’s mother and her husband’s brother, one Murithi are buried in the 1 acre and not outside1 acrethey occupy. She further stated that when the Executive Officer visited the land, there was a fence separating 1 acre and the defendants’ land and that the fence was where 1 acre was supposed to be. She stated that there was a mud house affected by the fence when the boundary was being straightened.

49. PW5 further told the court that the said fence did not affect the 1acre which her husband had bought. That herself and t he plaintiffs were aware when the fence was straightened. She told the court that he plaintiffs came to Court because they don’t like her. She stated that she was aware that the 4th defendant bought the land next to the said 1 acre and he has a house therein. She further stated that her husband was of age in 1967having been born in 1947. She told the court that there was a mistake in the death certificate which showed that her husband was 39 years when he died. She told the Court further that she is not the one who went for the death certificate and that it was the 1st plaintiff went to collect the death certificate for her husband.

50. PW5 further told the court that she got a copy of the Death Certificate from LOYFORD MURIUKI the 1st plaintiff and she did not notice the said mistake in the death certificate until later when she was in the Advocates office. She stated that she could not take action after realising the said mistake in the death certificate because she has health problems.

51. PW5 further told the court that she has no road of access from her homestead and she has to use the side of the Nyayo tea zone to access the road. That the plaintiffs had also burnt her fence and almost brought it down. She further told the court that the 1st to 4th defendants never destroyed the plaintiffs’ coffee as alleged by the plaintiffs. She stated that it is not true that she was colluding with the defendants to kick out the other plaintiffs from the suit land.

52. PW5 further told the court that she did not have documents to show that her husband bought land in 1967because there were no such documents. She told the court that when she got married, only Murithihad built on the land and others put up their houses recently. She stated that the coffee before the fence belong to KITHINJI NJOKA. When asked by the 1st, 2nd and the 3rd defendants’ Advocates about the latrine belonging to CATHERINE, PW5 stated that she did not know about the latrine because she does not live there. She told the court that she did not go there when the fence was being put up but she knows it cut a small size of Catherine’s house. She stated that she sees the fence from the road. She further stated that there was coffee belonging to her husband and that of KITHINJIthe 1st defendant. She reiterated that it is LOYFORD MURIUKI RIARA, the 1st plaintiff who went to take the Death Certificate for her husband.

53. As regards her statement to her advocates, PW5 stated that it would have made no difference even if she was to record her statement in another advocate’s office. She reiterated that the plaintiffs were cheating when they say that it is their mother who bought the land.

54. PW5 further stated she has her coffee and tea and the coffee that the 4th defendant has belongs to KITHINJI the 1st defendant herein. She stated that the subject parcel of land is 1 acre and that the 1st, 2nd and the 3rd defendants were small children when her husband bought the land.

c) 1st, 2nd and 3rd defendants’ case / evidence

55. The 1st, 2nd and the 3rd defendants’ case is that they are the registered owners of LAND PARCEL NO. MAGUMONI / THUITA / 494. That their father EPHANTUS NJOKA sold 1 acre of land to one EUSTACE MARANGU in 1967. The 1st, 2nd and 3rd defendants vehemently deny that AGNES KANYUA RIARA bought 1½ acres of land from their father in 1967 as alleged by the 1st, 2nd and 3rd plaintiffs.

56. 1st, 2nd and the 3rd defendants further stated that they sold ½ acre of LAND PARCEL NO. MAGUMONI / THUITA / 494 to the 4th defendant and that the 1 acre of land their father sold to EUSTACE MARANGU the husband to the 4th plaintiff is intact and they are willing to give the said 1 acre to the wife of EUSTACE MARANGU the 4th plaintiff.

57. During the hearing of the 1st, 2nd and the 3rd defendants case,DW1 testified. He adopted his statement as part of his evidence. He also prayed to the court to look at the statements of the 2nd and the 3rd defendants who were present in court.

58. WhenDW1 testified, he told the court that together with their mother LYDIA RUGURU who was their guardian had filed CHUKA DM’S CASE NO. 17 OF 1979seeking orders to evict EUSTACE MARANGU but the case was dismissed by the court for lack of jurisdiction. Subsequently their uncle one ELISIUS NGAI MURUA (DW2) informed them that it is true that their father had sold 1 acre of land to EUSTACE MARANGU and they should not evict him.

59. DW1 further stated that EUSTACE MARANGU had attempted to challenged the orders given in SUCCESION NO. 12 OF 1973 at Chuka Law Courts by way of review but his application was dismissed on 29/1/1974. He stated that there was no time EUSTACE MARANGU’S mother sued them claiming 1½ acres of LAND PARCEL NO. MAGUMONI / THUITA / 494.

60. DW1 stated that when the Executive Officer visited the land, the portion sold to the 4th defendant had coffee and tea which his father left to him (DW1). As regards coffee and tea in 1 acre, DW1 stated that they belong to EUSTACE MARANGU.

As for the mud house on the border, DW1stated that the same was touched when the boundary was being straightened to give SUSAN the 4th plaintiff the parcel which EUSTACE MARANGUhad bought.

61. DW1 stated that the 1st to 3rd plaintiffs’ claim is baseless and they were lying to court. He stated that the 1 acre EUSTANCE MARANGU bought should go to SUSY CIAMWARI. That the claim by the 1st to 3rd plaintiffs should be dismissed.

62. Upon being cross-examined by the 1st to 3rd plaintiffs’ advocates, DW1stated that there was a boundary between the land EUSTACE MARANGU had bought and their land which was made of Mikungugu trees. He further stated that they sold a portion to the 4th defendant up to Catherine’s house. He stated that before he sold the land to the 4th defendant he was the one who was utilizing the said land and he had not gone beyond the boundary. He reiterated that it was when the boundary was being straightened that Catherine’s mud house was touched. As regards the latrine, DW1 stated that the boundary does not touch Catherine’s latrine and that the toilet on the side he was utilizing before he sold ½ acre to the 4th defendant belongs to him (DW1).

63. DW1 further stated that after the 4th defendant moved to his portion (½) acre, he increased coffee and planted maize and that during the visit by the Executive Office, the maize had been harvested. He stated that he was born in 1967 and when MARANGU bought the land, he was a toddler and could not have known about the sale. He reiterated that the coffee on ½ acre belongs to him. He gave the court his coffee and tea numbers.

64. On being cross-examined by the 4th plaintiff’s advocate, DW1 satiated that the 4th plaintiff is the one in the 1 acre although they live in the said 1 acre together with the 1st to 3rd plaintiffs.

65. DW1 further told the Court that he came to know about EUSTACE MARANGU’Sbuying of the land in1979 when they were in court at Chuka and not 1973 as he had earlier told the court. He stated that trees divided the 1 acre from the rest of the land. He stated that the 4th defendant is not in 1 acre belonging to EUSTACE MARANGU.

66. As regards the toilet which the 4th defendant was using, DW1 stated that it belongs to him and he built it.

67. The 1st to 3rd defendants also called DW2 as their witness. DW2 is brother to the 1st to 3rd defendants’ father the late EPHANTUS NJOKA.DW2 adopted his statement dated 27/6/2017 as his evidence.

68. DW2 told the court that he was present when his brother sold 1 acre of land to EUSTACE MARANGU. He confirmed that he told KITHINJI that EUSTACE MARANGU had bought 1 acre of land from their father. He stated that before the 4th defendant bought the land, it was being used by KITHINJIand not EUSTACE MARANGU’S family.

69. On being re-examined,DW2 stated that EUSTACE MARANGU was shown the land by his brother EPHANTUS NJOKA when he sold the land to him and it was the same area they still occupy.

d) 4th Defendant’s Case

70. The 4th defendant gave evidence as DW3. He relied on his statement and replying affidavit to the Originating Summons. He stated that EUSTACE MARANGU’S family live in the said 1 acre and he has fenced all his ½ acre of land. He stated that when the land was being measured so that he can get his ½ acre, it was measured from the edge and straight measurements were made from 1 acre and then his ½ acre land was also measured. He stated that the latrine in his land belong to KITHINJIand that his fence touches a little the house of the 3rd plaintiff.

71. The 4th defendant’s (DW3) evidence in Court was not challenged by the plaintiffs. It was not shaken even after cross-examination by the 1st to 3rd plaintiffs’ Advocates and the 4th plaintiff’s Advocates.

e) Issues for determination

72. Your Lordship, we shall now proceed to submit on issues for determination as follows:-

i) Who bought the disputed land and what size was it?

73. Your Lordship, the 1st to 3rd plaintiffs allege that the disputed portion of land is 1 ½ acres of land and it was bought by their mother AGNES KANYUA RIARA from EPHANTUS NJOKAin 1967.

74. During the time of haring hereof, the 1st and the 2nd plaintiffs testified and called two witnesses. However, it is to be noted that none of the 1st to 3rd plaintiffs and their witnesses tendered documentary evidence in court to prove that it is AGNES KANYUA RIARA who bought the disputed land.

75. PW1, PW2, PW3 and PW4 who gave evidence in court stated that it is ANGES KANYUA RIARA who told them that she bought 1½ acre in 1967. This was all hearsay which was not supported by any documentary or direct evidence.

76. In 1967, PW1 had not been born andPW2 was only 7 years old. In fact none of the 1st to 3rd plaintiffs and their witnesses were a party to the alleged purchase of 1½ acre of land by AGNES KANYUA RIARA.

77. Further your Lordship, having not been parties to the said alleged agreement between AGNES KANYUA RIARA and EPHANTUS NJOKA, the 1st to 3rd plaintiffs and their witnesses should have produced in court evidence of measurement of the disputed portion to show that it measures 1½ acre.

78. PW3 stated that he was present when the land was measured but he did not have any document to show such measurement in court.

79. PW1stated that her mother bought 1½ acre of land at a costs of Kshs. 3,000/= but he did not produce any purchase or payments evidence.

80. We submit that in the absence of prove that AGNES KANYUA RIARA bought 1 ½ acre of land from EPHANTUS NJOKA and taking into account that the evidence of PW1, PW2, PW3andPW4 on how the alleged 1½ acre of land was bought is hearsay, we submit that AGNES KANYUA RIARA did not buy any land from EPHANTUS NJOKA.

81. The allegations by PW3thatAGNES KANYUA RIARA intended the alleged 1 ½ acre of land to be registered in her name does not hold water as it is in material contraction with the evidence of PW1 and PW2who stated that their mother bought the 1 ½ acrebut because she could not use her name as women never used to be registered with the land, she bought it in the name of EUSTACE MARANGU in trust for all the family members.

82. Your Lordship, PW1, PW2, PW3andPW4 stated in court that MARANGU was in primary school in 1967 and he could therefore not be able to buy land but he never produced any document to show that EPHANTUS MARANGU was in primary school in 1967. In fact PW3stated that in 1967, MARANGU was in class 7 but did not state how old MARANGUwas in 1967.

83. Further your Lordship, it is also to be noted that none of the 1st to 3rd plaintiffs or their witnesses gave evidence in court when EPHANTUS NJAGI was born. Surprisingly your Lordship, there was no document and / or aota of evidence that was given and / or demonstrated by the 1st to 3rd plaintiffs and their witnesses connecting AGNES KANYUA RIARA with the purchase of the said1½ acresof land.

84. We therefore submit that AGNES KANYUA RIARA did not buy 1 ½ acre of land from EPHANTUS NJAGI in 1967 and such allegations by the 1st to 3rd plaintiffs and their witnesses have no basis.

85. The fact that the 1st to 3rd plaintiffs are in occupation of the disputed portion of land does not give them a lee way to make false allegations simply because they don’t like the 4th plaintiff. The 1st to 3rd plaintiffs are licensees of the 4th plaintiff.

86. In fact, even in their own documents as we shall demonstrate hereinbelow, it is clear that the disputed land is 1 acre and was bought by EUSTACE MARANGU. That the allegations by the 1st to 3rd plaintiffs and their witnesses that EUSTACE MARANGU was in primary and / or class 7 in 1967 is not true and has no basis.

87. Your Lordship, there is overwhelming evidence before this court to prove that the disputed portion of land was bought by EUSTACE MARANGU in 1967.

88. First and foremost, in his sworn affidavit in support of his Notice of Motion for review in CHUKA DM’S SUCCESSION CAUSE NO. 12 OF 1973, EUSTACE MARANGU in paragraph 3, depones that he bought the land on 20/11/1967. – See annexture LMR 3(a) of the supporting affidavit to the Notice of Motion by the 1st plaintiff sworn on 3/11/2014 and filed in court on 5/11/2014.

89. The said sworn affidavit by EUSTACE MARANGU is duly signed by him.

90. During the time of hearing hereof, PW1 was cross-examined on the said annexture No. LMR 3(a) but he tried to avoid answering questions about it.

91. It is also to be noted that in the said paragraph 3 of the supporting affidavit by EUSTACE MARANGU the relevant parts showing the size and / or acreage of the land he bought are purposely erased to ensure that the court does not see that EUSTACE MARANGU had bought 1 acre of land and not 1½ acres as alleged by the 1st to 3rd plaintiffs.

92. It is also to be noted that in the said Notice of Motion byEUSTACE MARANGUin CHUKA DM’S SUCCESSION CAUSE NO. 12 OF 1973, AGNES KANYUA RIARA does not feature anywhere.

93. Equally your Lordship, in paragraph 4 of the said supporting affidavit in support of the Notice of Motion by EUSTACE MARANGU, although it is also not very legible, it is clear that he depone that he has no other land.

94. The question your lordship is why didn’t AGNES KANYUA RIARA apply to be enjoined in the said Notice of Motion or jointly file the said Notice of Motion with EUSTACE MARANGU?

95. Again your Lordship, in 1979, vide CHUKA DM’S CIVIL CASE NO. 17 OF 1979, which is also annexture No. LMR 4, in the affidavit of the 1st plaintiff sworn on 3/11/2014 and filed in court on 5/11/2014, it is clear that the 1st, 2nd and the 3rd defendants through their mother LYDIA RUGURU had filed a suit against EUSTACE MARANGU and not AGNES KANYUA RIARA.

96. Another question that arises is, why didn’t ANGES KANYUA RIARA apply to be enjoined in the said case if she was the owner of the disputed portion of land?

97. Your Lordship, it is also to be noted that in the annexture LMR5 in the supporting affidavit of the 1st plaintiff sworn on 3/11/2014 and filed in Court on 5/11/2014 that when CHUKA DM’S CIVIL CASE NO. 17 OF 1979 proceeded in court, one LYDIA RUGURU who gave evidence in court before the court dismissed the case for want of prosecution stated that the defendant (EUSTACE MARANGU)entered into the land in 1967. LYDIA RUGURU does not state that AGNES KANYUA RIARA entered into the land in 1967.

98. The1st, 2nd and the 3rd defendants and through their mother LYDIA RUGURU in CHUKA DM’S CIVIL CASE NO. 17 OF 1979, did not sue AGNES KANYUA RIARA simply because they did not know her. They knew EUSTACE MARANGU as the person occupying the disputed portion and not AGNES KANYUA RIARA.

99. Your Lordship, the 1st to 3rd plaintiffs’ allegations that the disputed portion of land was not bought by EUSTACE MARANGU but their mother is further far-fetched in that in annexture marked LMR1 in the same supporting affidavit by the 1st plaintiff sworn on 3/11/2014 and filed in Court on5/11/2014 is copy of the register forLAND PARCEL NO. MAGUMONI / THUITA / 494.

100. In the said register,Entry No. 2, there is a caution by EUSTACE MARANGU and it clearly shows that he claims his interest as a purchaser. There is no caution placed by AGNES KANYUA RIARA as a purchase or otherwise in the Register for the said land.

101. It is therefore clear that even in the documents filed by the 1st to 3rd plaintiffs in Court, they show that EUSTACE MARANGU is the one who purchased the disputed land and not AGNES KANYUA RIARA.

102. Your Lordship, when the PW5gave evidence in court, she categorically stated that it is her husband who bought the disputed portion of land and it was 1 acre. Her evidence was meritious. It was not shaken even after thorough cross-examination by the defendant and the 1st to 3rd plaintiffs’ advocates.

103. Indeed, the 1st defendant’s evidence in Court also shows that the subject parcel of land was bought by EUSTACE MARANGU and not AGNES KANYUA RIARA.

104. It is also to be noted that the brother to the late EPHANTUS NJOKA MURUA, DW2 gave evidence in Court and stated that he was present when his brother sold the 1 acre of land to EUSTACE MARANGU. DW2’Sstatement and evidence in court was not contradicted or shaken even after cross-examination by the 1st to 3rd plaintiff’s advocates.

105. In a nutshell, we submit that in view of the overwhelming evidence to show that it is EUSTACE MARANGU who bought the disputed portion of land, we submit that the same measures 1 acre and we urge the Honourable Court to find so.

ii) How old was EUSTACE MARANGU in 1967?

106. Your Lordship, having submitted and demonstrated by evidence and documentation that the disputed portion of land was purchased by EUSTACE MARANGU and that it was 1 acre of land, a question may arise as to how old was EUSTACE MARANGU in 1967.

107. The answer to the above question can be found in the evidence of PW4 and in the evidence of PW5.

108. As regards the evidence ofPW4, he stated that EUSTACE MARANGU was 15 years older than him and he insisted on that. PW4 shown the Court his National Identity card which shown that he was born on 14/4/1960.

109. If PW4was born on 14/4/1960, it follows that it is true when he told the court that in 1967, he was 7 years old. That being so, ifEUSTACE MARANGU was 15 years older than PW4, by doing simple calculations, it is 1960-15 years = 1945. This means that EUSTACE MARANGU was 15 years by 14/4/1960 and in 1967 EUSTACE MARANGU was 22 and therefore an adult capable of buying land.

110. As for the evidence of PW5, who is the wife of EUSTACE MARANGU, she told the Court that her husband was born in 1947. If EUSTACE MARANGU was born in 1947as per PW5’s evidence, it follows that in 1967, EUSTACE MARANGU was already 18 years and therefore an adult capable of buying land.

111. The allegations by the 1st to 3rd plaintiffs and their witnesses thatEUSTACE MARANGUwas in primary school and / or was 7 years old was not supported by any evidence at all. None of the 1st to 3rd plaintiffs and their witnesses stated how old EUSTACE MARANGU was in 1967.

112. We submit that in 1967, as per the available evidence particularly that of PW4andPW5, EUSTACE MARANGU was above 18 years in 1967and therefore capable of buying the said 1 acreof land.

113. Your Lordship, an issue of the age and as to when EUSTACE MARANGU was born also came out during the hearing of PW5in regard to his (EUSTACE MARANGU’s) Death Certificate. PW5 told the Court that it is the 1st plaintiff LOYFORD MURIUKI RIARA who obtained the death Certificate for EUSTACE MARANGU. She stated that the 39 years reflected in the Death Certificate of EUSTACE MARANGU was not the correct years of her husband as at the time of his death. She stated that she realised the mistake in the Death Certificate when the 1st plaintiff gave her a copy thereof. She further stated that she was unable to follow up over the said mistake in the Death Certificate because she had been unwell.

114. Your Lordship, the Court will note that the evidence of PW5 that it is the 1st plaintiff who obtained the Death Certificate for EUSTACE MARANGU reflecting the wrong years was not controverted by the 1st to 3rd plaintiffs during cross-examination by the 1st to 3rd plaintiffs’ advocates. There was no denial by the 1st to 3rd plaintiffs that it is the 1st plaintiff who obtained the Death Certificate for EUSTACE MARANGU.

115. There was also no denial on the part of the 1st to 3rd plaintiffs that EUSTACE MARANGUwas born in 1945 or 1947. In fact, it is PW4 who is the 1st to 3rd plaintiffs’ witness who told the Court thatEUSTACE MARANGUwas 15 years older than him (PW4).

116. Your Lordship, it is to be noted that it is PW1 who obtained the Death certificate for EUSTACE MARANGU which reflected the wrong years.

117. It is also to be noted that PW1 completely failed to disclose the age and / or the year when EUSTACE MARANGU was born in his evidence in Court, his affidavits in support of the Originating Summons and / or in his statement filed in Court.

118. We submit that indeed, the years reflected in the Death certificate as the age of EUSTACE MARANGU are incorrect and the 1st plaintiff knew about it but kept it to himself to cause confusion as to the age ofEUSTACE MARANGU and with the intention of taking away the disputed portion of land from the 4th plaintiff.

119. We urge the Court to find that in view of the evidence tendered in Court and in view of our submissions hereinabove, EUSTACE MARANGU was over 18 years in 1967 and therefore capable of purchasing the said 1 acre of land.

120. In any event, in (a) hereinabove, we have submitted and demonstrated that it is EUSTACE MARANGU who bought the subject parcel of land and he is the one who had all along pursued it and not his mother AGNES KANYUA RIARA.

iii) Whether the 1st to 3rd plaintiffs proved their case of the balance of probabilities.

121. Your Lordship, we submit that the 1st to 3rd plaintiffs did not prove their case to the degree required in civil cases.

122. First and foremost, it came out clearly during the time of hearing hereof that the 1st to 3rd plaintiffs did not prove that it is their mother AGNES KANYUA RIARA who bought the disputed portion of land.

123. The evidence that PW1, PW2, PW3and PW4 gave in Court was all hearsay. All that they stated in Court in regard to who bought the alleged 1½ acre of land was all hearsay.

124. There was no documentary or direct oral evidence to prove that AGNES KANYUA RIARAbought 1½ acres of land from EPHANTUS NJOKA, none of the 1st to 3rd plaintiffs and their witnesses witnessed the alleged agreement in 1967.

125. The allegations that EUSTACE MARANGU was in primary school and in class 7 in 1967was not supported by documentary and / or any evidence.

126. The allegations by the 1st to 3rd plaintiffs that ½ acre of land belonging to the 4th defendant was part of1½ acreof land their mother purportedly bought in 1967 was not supported by any evidence and neither did they call any evidence to prove their allegations.

127. The 1st to 3rd plaintiffs’ allegations that the defendants had destroyed their properties and cut their trees was not supported by any evidence.

128. As regards the mud house belonging the 3rd plaintiff which had been affected by the boundary which was placed between the disputed parcel of land and the ½ acre of land belonging to the 4th defendant, it came out clearly during the hearing hereof that the said mud house was slightly affected when the boundary for 1 acre which EUSTACE MARANGU had bought was being straightened.

129. Further your Lordship, it also came out clearly during the time of hearing hereof that as per the documents relied upon by the 1st to 3rd plaintiffs, it is EUSTACE MARANGU who bought the disputed portion of land and that in fact, the evidence available shows that it is EUSTACE MARANGU who was all along pursuing and / or protecting the said portion in court and even in the land’s office and not AGNES KANYUA RIARA.

130. Your Lordship, for the 1st to 3rd plaintiffs to prove that they are entitled to 1½ acre of land by adverse possession, they had to prove how they entered into the disputed parcel of land. The 1st to 3rd plaintiffs failed miserably when they alleged that they entered into the purported land parcel measuring 1½ acre pursuance to the purchase of the said parcel of land by their mother.

131. As at the time of hearing hereof, it came out clearly that their allegations were not true for the reasons we have submitted hereinabove.

132. Your Lordship, during the time of hearing hereof, it also came our clearly that it is EUSTACE MARANGU who bought the disputed parcel of land and it was 1 acre and not 1½ acres.

133. It also came out clearly that it is EUSTACE MARANGU who invited the 1st to 3rd plaintiffs and their mother AGNES KANYUA RIARA into the disputed portion of land.

134. It also came out clearly that the latrine which the 3rd defendant alleged that it was in the ½ acre of land belong to the 1st defendant and it fell into the ½ acrewhich the 1st to 3rd defendants sold to the 4th defendant.

135. The allegations by the 1st to 3rd plaintiffs that coffee and tea in ½ acre of land belonging to the 4th defendant belonged to them is not true.

136. In fact, PW5 clearly stated that the teas and coffee in the ½ acre of land belong to the 1st defendant and that the coffee in the 1 acre of land belong to EUSTACE MARANGU.

137. The allegations by the 1st to 3rd plaintiffs that the boundary on the alleged 1½ acres extended beyond the current barbed wire which separate the 1 acre and the ½ acre belonging to the 4th defendant were just mere allegations which were not supported by any evidence.

138. In Wambugu -VS- Njuguna [1983] KLR at page 173, the Court of Appeal held:-

“Adverse possession means that a person is in possession, in whose favour time can run. Not all persons in possession can have time run in their favour. For example, time can run in favour of a tenant at will by virtue of Section 12 of The Limitation of Actions Act but time cannot run in favour of a licensee. A licensee therefore has no adverse possession (Hughes –VS- Griffin) [1969]1 WLR 23)”

139. Your Lordship, in our present case, the 1st to 3rd plaintiffs failed to prove that they occupy 1½ acres of land which they alleged their mother AGNES KANYUA RIARApurportedly bought.

140. Instead, the evidence that came out during the hearing of this case is that the 1st to 3rd plaintiffs are in occupation of the 1 acre of land which EUSTACE MARANGU bought.

141. It also came out clearly during the time of hearing hereof that the 1st to 3rd plaintiffs have been in occupation of the said 1 acre of land with the permission of EUSTACE MARANGU.

142. We therefore submit that they are licensees of the wife of EUSTACE MARANGUthe 4th plaintiff herein who is entitled to the said 1 acre of land.

143. Having failed to prove that they are in occupation of the purported 1½ acres of land, their claim against the 1st to 3rd defendants who are the registered owner of LAND PARCEL NO. MAGUMONI / THUITA / 494 must fail.

144. We urge the Court to find that the 1st to 3rd plaintiffs failed to prove their case and the same should be dismissed with costs to the defendants.

iv) Whether the 4th plaintiff proved her case to the degree required

145. Your Lordship, the 4th plaintiff’s claim for 1 acre of LAND PARCEL NO. MAGUMONI / THUITA / 494is not disputed by the 1st to 3rd defendants. The 4th defendant is the purchaser of ½ acre which he bought and fully paid the purchase price and took possession has no objection to the 4th plaintiff getting her 1 acre of land which her husband bought.

146. During the time of hearing hereof, the 4th plaintiff tendered her evidence in Court and her evidence was consistence, truthful and was not shaken by the 1st to 3rd plaintiffs’ Advocates and the defendants’ Advocate even upon intense cross-examination.

147. Further your Lordship, it is also clear from the evidence in court which we have submitted in (a)and(b) hereinabove that indeed, it is EUSTACE MARANGUwho bought the disputed parcel of land measuring 1 acre from EPHANTUS NJOKA.

148. It also came out clearly that vide his sworn affidavit in support of his application for review in CHUKA DM’S COURT SUCCESION CAUSE NO. 12 OF 1973, EUSTACE MARANGU in paragraph 3 clearly stated that he bought the land on 20/11/1967. This is the first direct evidence available in Court to show that the disputed parcel of land was bought by EUSTACE MARANGU.

149. Secondly, the next direct evidence is the Green Card for the LAND PARCEL NO. MAGUMONI / THUITA / 494 which was produced by the 4th defendant as exhibit and also annexed by the 1st plaintiff as annexture LMR1 in his supporting affidavit sworn on 3/11/2014 and filed in Court on 5/11/2014 in Entry No. 2 which shows a Caution placed by EUSTACE MARANGU who indicates had cautioned the said land as a purchaser.

150. There is also the evidence of DW2 who is the brother to EPHANTUS NJOKA and he participated in the sale of 1 acre of land by EPHANTUS NJOKA.

151. The 4th plaintiff also told the Court that her husband told her that he had bought 1 acre of land from EPHANTUS NJOKA.

152. We submit that it is the 4th plaintiff who is entitled to 1 acre of LAND PARCEL NO. MAGUMONI / THUITA / 494.

153. Your Lordship, it also came out clearly during the time of hearing hereof that it is the 4th plaintiff’s husband EUSTACE MARANGU who allowed the 1st to 3rd plaintiffs in the said 1 acre of land on condition that they will buy their land and move out of his land.

154. We submit that it is the 4th plaintiff who is entailed to 1 acreofLAND PARCEL NO. MAGUMONI / THUITA / 494.

155. We shall only pray to the Court not to condemn the 1st to 3rd defendants to pay the 4th plaintiff costs as they never disputed the plaintiffs’ claim herein.

v) Whether the 1st to 3rd defendants have a good defence against the 1st to 3rd plaintiffs

156. Your Lordship, in(iii) hereinabove, we have demonstrated and submitted that the 1st to 3rd plaintiffs did not prove their case against the 1st to 4th defendants. We have also demonstrated in (i) that the disputed land was 1 acreand not 1½acres of land and that the said 1 acre was bought by EUSTACE MARANGU. We have also demonstrated and submitted with material evidence in (ii) that EUSTACE MARANGU was of age when he bought the said 1 acre of land. We have also demonstrated in (iv) that it is the 4th plaintiff who is entailed to the said 1 acre of land.

157. In a nutshell, we submit that the 1st to 4th defendants indeed tendered a good defence against the 1st to 3rd plaintiffs’ claim and urge the Court to find so and allow the 1st and 4th defendants’ replying affidavits to the Originating Summons and the 1st to 3rd plaintiffs’ claim.

158. The only issue we would want to bring to the attention of the Court is that the 4th defendant who gave evidence in Court as DW3clearly stated in his statement and evidence that he bought the ½ acre of land form the 1st to 3rd defendants.

159. His evidence in Court is clear and straight forward. It was not shaken during the cross-examination by both the 1st to 3rd plaintiffs’ Advocates and the 4th plaintiff’s Advocates.

160. The 4th defendant also produced his documents as his exhibits which were also not disputed.

f) The 1st to 4th defendants’ comments in respect of the report of the Scene visit by Court Administrator on 30/08/2018 in LAND PARCEL NO. MAGUMONI / THUITA / 494.

161. Your Lordship, we cannot conclude our submissions herein without making a few comments of the Court Administrator’s Report on the scene visit on 30th August 2018.

162. First your Lordship, we want to state that it is true that the locus in quo was visited on 30/08/2018.

163. During the said visit, the parties and their Advocates were present.

164. The unsworn statements were made by the parties and as the Court can note from the said report, the said statements were more or less what the parties stated in Court when this matter was heard.

165. The only difference is that the said statements were not tested through cross-examination as was done in Court.

166. When this case was subsequently heard, evidence given by the parties in this case and their witnesses were put to test through cross-examination and we do not need to repeat what we have already submitted.

167. However, we want to bring to the attention of the Court that the 1st defendant’s statement was incorrectly recorded because he stated that EUSTACE MARANGU bought 1 acre and not 0. 50 acres.

168. The 1st defendant was all along consistence in his replying affidavit to the amended originating summons sworn on 27/06/2017 and filed in court on 13/07/2017, his statement dated 27/06/2017 and filed in Court 13/07/2017 and his evidence which he tendered in this Court in regard to the size of the land bought by EUSTACE MARANGU.

169. Other issues raised in the scene visit report came out clearly during the time of hearing hereof particularly the house of the 3rd plaintiff which was slightly affected when the boundary was straightened.

170. On the allegations that some trees were cut down from the disputed portion of land, the 1st to 3rd plaintiffs did not prove such allegations during the hearing hereof.

171. On the issue of the cowshed being constructed recently, it is clear from the 4th defendant’s statement dated 27/06/2017 and filed in Court on 13/07/2017 and his list of documents, particularly the sale agreement D EXH. 3 and his replying affidavit to the originating summons sworn on 27/06/2017 and filed in Court on 13/07/2017that the 4th defendant took possession of ½ acre of land and has extensively developed it

172. The finding by the Court Administrator that a piece of land sold to the 4th defendant has encroached the 3rd plaintiff’s home is not true and / or supported by any evidence because it came out clearly at the time of hearing hereof that a small part of the mud house belonging to the 3rd plaintiff got affected when the boundary was being straightened.

173. On the issue of the 3rd plaintiff’s toilet being cut off and taken by the 4th defendant, it was clear during the time of hearing hereof that the said toilet belong to the 1st defendant and was taken over by the 4th defendant when he bought ½ acre of LAND PARCEL NO. MAGUMONI / THUITA / 494.

174. Finally, it is also to be noted that there was no finding by the Court Administrator that there existed any other boundary separating the ½ acre of land belonging to the 4th defendant and 1 acre belonging to EUSTACE MARANGU.

175. The boundary made up of trees that was alleged by the 1st to 3rd plaintiffs to have existed beyond the current fence separately the 1 acre of land and½ acreof land was never noted by the Court Administrator because it never existed.

g) What appropriate orders should the Court give in this case?

176. Your Lordship, we have analysed both the plaintiffs and the defendants’ cases hereinabove. We have also addressed issues for determination and made a few comments on the Court Administrator’s scene visit report.

177. From our submissions hereinabove, and taking into account the evidence tendered in court, we pray to the Court to dismiss the 1st to 3rd plaintiffs’ case with costs to the defendants.

178. As regard the 4th plaintiff’s case, we urge the Court to allow find that she is the one entitled to the said 1 acre.

179. We also urge the Court to find that the 1st to 3rd plaintiffs are mere licensees of the 4th plaintiff in the said 1 acre.

We so humbly pray.

DATED AT MERU THIS 3RD DAY OF DECEMBER, 2018

NYAMU NYAGA & CO. ADVOCATES

ADVOCATES FOR THE 1ST, 2ND 3RD & 4TH DEFENDANTS

16. I have considered the pleadings, the oral evidence and the submissions proffered by the parties in support of their assertions. I have also considered the case of Wambugu versus Njuguna, Civil Appeal No. 10 of 1982, Court of Appeal at Nairobi, proffered by the defendants to buttress their assertion that adverse possession cannot accrue in favor of a licensee.

17. I find the only issues to be determined are:

(a) Are the plaintiffs entitled to be declared owners of part of the suit land measuring 1 ½ acres by way of adverse possession?

(b) Is the 4th plaintiff entitled to be exclusively declared owner of part of the suit land measuring 1 acre by way of adverse possession?

18. All the plaintiffs have proved that they have been in occupation of the suit land for a period exceeding the threshold for entitlement to be declared owners of part of the suit land through the doctrine of adverse possession.

19. The 1st to 3rd plaintiffs have not proved that one Agnes Kanyua Riara, deceased, the person through whom they claim the suit land bought 1 ½ acres and not 1 acre from Ephantus Njoka, deceased. On a balance of probabilities, I find that Agnes Kanyua Riara (deceased) only bought 1 acre.

20. The 4th plaintiff has not proved that it is her deceased husband, (Eustace Marangu) who bought the suit land.

21. I find that the scene report filed by this court’s Executive Officer is rather nebulous in that it does not touch on the acreage of the portion occupied by all the plaintiffs. It is, however, helpful in that it confirms occupation of the suit land by all the plaintiffs for a long period of time.

22. I issue the following orders:

a) The 1st, 2nd and 3rd plaintiffs’ claim that they be declared owners of 1 ½ acres out of Land Parcel No. Magumoni/Thuita/494 by way of adverse possession is hereby dismissed.

b) The 4th plaintiff’s prayer that she be exclusively declared owner of 1 acre out of Land Parcel No. Magumoni/Thuita/494 is hereby dismissed.

c) I find that the 1st to 4th plaintiffs are entitled jointly to ownership of 1 acre out of Land Parcel No. Magumoni/Thuita/494 in equal shares and their present occupation should determine the portions of land which they are entitled to.

d) Costs shall follow the event and are awarded to the 1st, 2nd, 3rd and 4th defendants.

Delivered in open Court at Chuka this 22nd day of May, 2019 in the presence of:

CA: Ndegwa

Kijaru absent for 1st, 2nd & 3rd plaintiffs

Dennis Muthomi h/b Nyamu Nyaga for defendants

Dennis Muthomi h/b I.C.Mugo for the 4th plaintiff

P. M. NJOROGE,

JUDGE.