[2022] KEELC 569 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

ELC NO 231 OF 2015 (OS)

LUCY WANJIKU MWENDASUING AS THE LEGALREPRESENTATIVEOF THE

ESTATE OF EDWARD WAMBOROMWENDA (DECEASED)................................PLAINTIFF

VERSUS

BENSON GICHO WAINAINA.............................................................................1ST DEFENDANT

SAMUEL NJUGUNA WAINAINA......................................................................2ND DEFENDANT

JUDGMENT

1. The applicant moved the court through an Originating Summons dated 27/07/2015brought under Sections 17, 18 and 37and38 of the Limitation of Actions Act CAP 22andOrder 37 rule 7of theCivil Procedure Rules 2010and supported by the plaintiff’s sworn affidavit of even date.

2. The suit land in this matter is known as LR NO 12783/20. The plaintiff sought orders declaring her the legal owner entitled by adverse possession to the suit land. Her claim is that she has without any interruption from the defendants or from any other person occupied, cultivated and developed the suit land for over 25 years.She seeks an order directing that the Chief Land Registrar does rectify the land register to reflect her registration as proprietor of the suit land in lieu of the 2nd defendant in whose favour the land is currently registered.

Response

3. The 2nd respondent filed his sworn replying affidavit dated 2/12/2015. He deposed to various matters therein but those matters shall not be considered in defence as the defendants never appeared to give evidence at the hearing of the suit despite being served by the plaintiff as reflected in the affidavit of service dated 27/1/2022 which was filed in the court record on 4/2/2022.

The plaintiff’s evidence

4. The plaintiff testified at the hearing on 24/2/2022 and on 25/2/2022. She adopted the contents of her affidavit in support of the Originating Summons as her evidence-in-chief. She also produced the copies of documents attached to that affidavit and also in the list of documents dated 23/2/2022 as her exhibits in the suit. Her evidence is that she has been in quiet possession of the suit land from 1986 up to the date of the hearing; that she acquired possession of the suit land as a bequest from her late husband Edward Wamboro Mwenda; that she holds letters of administration to her late husband’s estate; that she has developed the suit land by building rental houses; that the land was sold to her late husband by one Charity Nyokabi Wainaina vide a sale agreement dated 10/9/1986; that the petition for a grant for letters of administration which conferred the 1st defendant with a grant to the estate of the late Paul Wainaina Kingara was filed in 1982 before the plaintiff acquired the suit land; that in 2004 the 2nd defendant began laying claim to the suit land; that she conducted a search on the suit land and discovered that the 2nd defendant was the registered proprietor; that she filed Nakuru CMCC 523 Of 2009 to prevent the defendants from evicting her but she later withdrew the suit; that she has continually maintained a dwelling house, the grounds, the fence and all other facilities on the said premises to a reasonable habitable standard at a colossal cost drawn from her resources and that she has lived openly on the land with the defendant’s knowledge without paying them any rent or license fee or other consideration in a manner totally adverse to their interests in the suit land. Among the documents that she produced in evidence is a certified copy of a grant showing that the suit land was registered in the name of the 2nd defendant.

Submissions.

5. The plaintiff filed submissions on 14/3/2022. The defendant filed none. The plaintiff submitted in favour of her claim and, citing the cases of Adetoun Oladeji (NIG) Ltd vs Nigeria Breweries PLC SC 91 2002, Mbira vs Gachuhi [2002[ 1 EALR 137, Kipkoech Arap Langat & another vs Kipngeno arap Laboso Kericho HCCC No 124 of 2004 (OS), Kimani Ruchine & another vs Swift, Rutherford Co. Ltd & another [1977] KLR 10 urged this court to find that the plaintiff’s claim is merited.

Determination

6. The main issue that arises for determination in the instant motion is whether the plaintiff has established that she deserves to be registered as proprietor of the suit land by virtue of adverse possession.

7. The defendants never attended court to give evidence and the plaintiff’s evidence has not been controverted in any manner. It is clear that the 1st defendant is the administrator of the estate of his late father who had held title before the 2nd defendant was registered as proprietor of LR No 12783/20.

8. In this court’s view the plaintiff has established that she has been in open and quiet possession of the suit land since 1986with the knowledge of the defendants including the 2nd defendant who is the registered proprietor. The permanent developments erected by the plaintiff on the suit land were proved by way of photographic evidence. She has asserted her uninterrupted, open and quiet possession of the suit land exceeding 12 years against the 1st and the 2nd defendants’ title in a firm and undeniable manner. In the case of Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees [2016] eKLRthe Court of Appeal stated as follows:

“If there is evidence that the trespasser occupied and carried activities and/or developments on the land claimed which the world could see and it is shown, for instance, that the owner lives near the land claimed or visits the area where it is located, the owner cannot be allowed in law to feign ignorance that he does not know of the trespass.”

9. According to Section 17of theLimitation of Actions Act CAP 22,at the expiration of the period prescribed by the Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished. That period as prescribed by Section 7ofCAP 22 is 12years.

10. The agreement dated 10/9/1986 vide which the land was sold to the plaintiff’s husband has not been denied and the plaintiff has brought the instant action as administrator to his estate. The plaintiff also produced as PExh 5 a copy of a letter from Charity Nyokabi Wainaina the person who is claimed to have sold the suit land to the plaintiff’s husband, which acknowledges that the author had received Ksh 35,000/= from the plaintiff’s husband as consideration for the suit land.

11. Section 4 of the Limitation of Actions Act Cap 22 provides as follows:

“4. Actions of contract and tort and certain other actions

(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—

(a) actions founded on contract;

(b) ……………………………………………………………..”

12. In the light of Section 4ofCAP 22 the cause of action under the contract for sale of the suit land was extinguished on 10/9/1992 which is exactly 6 years after 10/9/1986. The period of the plaintiff’s adverse possession in the instant case must therefore be computed from 10/9/1992 and that computation shows that the plaintiff’s period of possession is clearly in excess of 12 years. In this court’s view that statutory period applies to the defendants as successors in title to the suit land and the procurement of a title in the name of the 2nd defendant in the year 2005 does not adversely impact on the computation of the plaintiff’s period of occupation of the land so as to render it to be below the requisite 12 years to prove adverse possession.

13. In the case of Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees [2016] eKLRthe Court of Appeal observed as follows:

“16. A claim for adverse possession arises where land owned by a person is claimed by a trespasser on the basis that the trespasser, with the knowledge of the owner, has occupied it adversely to the title of the owner continuously for an interrupted period of not less than 12 years. An order for adverse possession made in favour of a trespasser is enforceable against the person registered as proprietor whose title is extinguished by adverse possession. The High Court in Amos Weru Murigu v. Marata Wangari Kambi and Another (H.C.C.C. No. 33 of 2002 (O.S) (at Kakamega) correctly held that –

“adverse possession can only arise where land is registered in the name of the person against whom the claim for adverse possession is made for the simple reason that land must be occupied by a trespassing claimant adversely to the title of the owner (proprietor) against whom the claim is made under Section 38 of the Limitation of Actions Act.”

14. In the case of Kipkoech Arap Langat & Another V Kipng’eno Arap Laboso [2011] eKLR the court (GBM Kariuki J as he then was) cited the decision of the court in Amos Weru Murigu –vs- Marata Wangari Kambi & another, High Court of Kenya at Nairobi (Civil Suit No. 33 of 2002(O.S) as follows:

“…where a person trespasses on the land of another with the knowledge of the latter who does not assert his right to the title to the land by evicting the trespasser or by suing him or her in court for eviction or ejectment but instead lets the trespasser openly occupy the land for a continuous and uninterrupted period of not less than twelve (12) years, the trespasser is entitled to apply to the High Court under section 38(supra) to be registered as the proprietor of the land. This is what the doctrine of adverse possession means. Where the period of 12 years is not continuous or is interrupted, the period of adverse possession is broken and must start all over again. But where one trespasser removes another trespasser who is in adverse possession to the owner and continues to occupy the land, the period of adverse possession is not broken and the second trespasser is entitled to combine the period of trespass of the first trespasser to his own. The land claimed by adverse possession need not be all the land comprised in the title; it may be a portion of it providing that the portion claimed is demarcated well enough to be identifiable. And as regards assertion of title, it is not enough for a proprietor of the land to merely write to the trespasser. A letter by the proprietor, even if it be through an advocate or the chief of the area does not amount to assertion of title in law and cannot therefore interrupt the passage of time for the purpose of computing the period of adverse possession. For there to be interruption, the proprietor must evict or eject the trespasser but because eviction is not always possible without breach of peace, institution of suit against the trespasser does interrupt and stop the time from running. For these propositions of the law, see GATIMU KINGURU V. MUYA GATHANGI (1976) KLR 253; HOSEA V. NJIRU [1974] E.A. 526; SOSPETER WANYOIKE V. WAITHAKA KAHIRI (1979) KLR 236; WANJE V. SAIKWA (NO. 2) (1984) KLR 284; GITHU V. NDEETE [1984] KLR 776; NGUYAI V. NGUNAYU(1984) KLR 606; KISEE MAWEU V. KIU RANCHING (1982-88) IKAP 746…”

15. Section 38ofCAP 22 provides as follows:

“38. Registration of title to land or easement acquired

under Act

(1). Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”

16. The portion that the plaintiff claims is clearly defined and has a title. The land in this case was registered under the Registration of Titles Act CAP 281(now repealed) which is one of the Acts provided for in Section 37ofCAP 22.

17. It was incumbent on the administrator of the estate of the late Paul Wainaina Kingara that is the 1st defendant to evict the plaintiff from the suit land before the expiry of 12 years of adverse possession which he never did. From paragraph 7 of the supporting affidavit it is clear that Nairobi Succession Cause No 124 of 1982 vide which he was appointed administrator was filed more than 12 years ago.

18. In the light of the foregoing, I find that the plaintiff has proved her claim against the 1st and 2nd defendants on a balance of probabilities. I therefore issue the following final orders:

a. That the plaintiff has established that she is entitled to be registered as the proprietor of all that land known as LR NO 12783/20 by way of adverse possession;

b. That the 2nd defendant’s title to the suit land has been extinguished by operation of the law in favour of the plaintiff.

c. That the Chief Land Registrar shall cancel the title issued in the name of Samuel Njuguna Wainaina in respect of LR NO 12783/20 and issue in lieu thereof he shall issue title in the name of Lucy Wanjiku Mwenda as administrator of the estate of Edward Wamboro Mwenda.

d. That the parties shall each bear their own costs of the suit.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 30TH DAY OF

MARCH, 2022

MWANGI NJOROGE

JUDGE, ELC, NAKURU