[2023] KEELC 22370 (KLR)

Macharia v Hunyu (Environment & Land Case 61 of 2023) [2023] KEELC 22370 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22370 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment & Land Case 61 of 2023

YM Angima, J

December 14, 2023

Between

Charles Macharia

Applicant

and

Zaweria Wanjiru Hunyu

Respondent

Judgment

A. Introduction 1. This judgment is in respect of two consolidated suits over the suit property. The first is what was formerly Nyahururu MC ELC No 354 of 2018 – Zaweria Wanjiru Hunyu v Charles Macharia. By the said suit, the Respondent sued the Applicant seeking recovery of the suit property, a permanent injunction, mesne profits and costs of the suit. The second is the instant originating summons by which the Applicant sued the Respondent seeking adverse possession of the suit property and other consequential orders.

B. Applicant’s Claim 2. By an originating summons dated 08. 10. 2019 brought under Sections 7 & 38(1) of the Limitation of Actions Act (Cap.22), order 37 rule 7(1) & (2) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law, the Applicant sought the following orders against the Respondent:a.A declaration that the Applicant is entitled by virtue of the doctrine of adverse possession to be registered as the absolute proprietor of LR Nyandarua/Uruku Block 2/1437 (Uruku) measuring 0. 8960 hactares.b.An order that the Deputy Registrar of this honourable court be authoritized to execute all the necessary documents to facilitate the registration of the Applicant as the absolute proprietor of LR Nyandarua/Uruku Block 2/1437 (Uruku).c.The Respondent be restrained permanently from remaining, using, possessing, occupying or interfering in any other manner with the said LR Nyandarua/Uruku Block 2/1437 (Uruku) or any portion thereof.d.The costs of the suit be awarded to the Applicant.

3. The summons was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the Applicant, Charles Macharia, on 08. 10. 2019 and the exhibits thereto. The Applicant contended that the suit property was initially allocated to his late father Emillo Gichuki Kagoko (the deceased) by Othaya Mahiga Chinga Ex-Facco Company (the company) and that the deceased took possession and developed the suit property as from 1997.

4. The Applicant pleaded that although he entered the suit property together with the deceased in 1997 and had continued in possession thereof since then the Respondent’s late husband, Peter Mwangi Ngororo (Ngororo) had in 2001 been wrongfully been registered as proprietor thereof and that upon his demise the Respondent had acquired registration thereof through succession proceedings. The Applicant further pleaded that on or about 18. 10. 2018 the Respondent had filed Nyahururu MC ELC No 354 of 2019 for recovery of the suit property from him even though he had already acquired the same on account of the doctrine of adverse possession.

5. The record shows that the Respondent filed a replying affidavit sworn on 09. 10. 2020 in opposition to the originating summons. The Respondent disputed the Applicant’s claim for adverse possession of the suit property. He pleaded that the suit property was acquired by Ngororo from one Kingori Rufas who had been allocated the same by the company. She stated that prior to his death in 2006, the deceased was the one utilizing the suit property hence it was not true that the deceased took possession thereof in 1997.

6. The Respondent pleaded that the Applicant forcibly entered and took possession of the suit property only after the death of Ngororo and that his occupation was only discovered in 2008. She further stated that when the Applicant started leasing the suit property in 2018, she filed Nyahururu MC ELC No 345 of 2018 whereby an interim injunction was issued against the Applicant. It was denied that the Applicant had been in continuous, open and uninterrupted possession of the suit property for the requisite statutory period to warrant the claim for adverse possession.

C. Respondent’s Suit 7. The record shows that by her plaint dated 16. 10. 2018 in Nyahururu MC ELC No 354 of 2018 the Respondent sued the Applicant seeking the following reliefs:a.A permanent injunction do issue restraining the defendant by himself, his agents, servants and/or employees from entering, remaining, ploughing, cutting down trees, erecting structures and/or in any other way interfering with the plaintiff’s LR No Nyandarua/Ndaragwa/Uruku Block 2 (Uruku)/1437. b.Eviction orders to issue against the defendant to be supervised by the O.C.S. Ndaragwa Police Station.c.Mesne profits at Kshs 15,000/= per annum.d.Costs of this suit plus interest.e.Any other or further reliefs that this honourable court may deem fit and just to grant.

8. The Respondent pleaded that at all material times she was the registered proprietor of the suit property having acquired it vide Nyeri High Court Succession Cause No 569 of 2008. She further pleaded that the Applicant had without any lawful justification or excuse entered and occupied the suit property thereby denying her the right of use and occupation thereof. She contended that she had suffered loss of use and income at the rate of Kshs 15,000/= per annum which amount she sought to recover from the Applicant. It was her case that despite issuance of a demand and notice of intention to sue, the Applicant had failed to make good her claim hence the suit.

9. The material on record shows that the Applicant filed a defence dated 11. 02. 2019 denying the Respondent’s claim in its entirety. The Applicant pleaded that the Respondent had obtained registration of the suit property fraudulently as she had no legal interest in the property. He pleaded that he had been in actual, physical possession of the suit property since 1997 hence the suit for its recovery was misconceived and fatally defective.

10. The Applicant further pleaded that he had previously lodged a claim for the suit property before the Ndaragwa Land Disputes Tribunal (the tribunal) which delivered an award in 2010 holding that the suit property rightfully belonged to the deceased. It was contended that the said award of the tribunal had never been set aside on appeal or otherwise hence it was still valid and enforceable. The court was consequently urged to dismiss the Respondent’s claim with costs.

D. Hearing of the Suit 11. At the trial hereof, the Applicant testified on his own behalf and called one additional witness in support of his claim for adverse possession and in defence to the Respondent’s suit for recovery of the suit property. The Applicant maintained that the suit property legitimately belonged to his deceased father and that the late Ngororo was fraudulently registered as proprietor thereof in 2001. It was also his evidence that he had acquired adverse possession of the suit property by virtue of his long occupation thereof.

12. The Respondent, on the other hand, called 3 witnesses in opposition to the claim for adverse possession and in support of her claim for recovery of the suit property. The Respondent’s evidence was to the effect that she was the sole and absolute proprietor of the suit property having acquired the same lawfully through succession proceedings for the estate of the late Ngororo. It was her case that the Applicant had failed to demonstrate his claim for adverse possession as required by law.

E. Directions on Submissions 13. Upon conclusion of the hearing, the parties were granted timelines within which to file and exchange their respective written submissions. The record shows that the Applicant’s submissions were filed on or about 16. 09. 2023 whereas the Respondent’s submissions were filed on 01. 11. 2023.

F. Issues for Determination 14. The court has perused the Applicant’s pleadings and the Respondent’s pleadings in both the originating summons and the suit for recovery of the suit property. The court has also perused the documents and evidence on record in this matter. The court is of the opinion that the following are the key issues which arise for determination:a.Whether the Applicant has proved his claim for adverse possession.b.Whether the Respondent has proved her claim for recovery of the suit property.c.Whether the Applicant is entitled to the reliefs sought in the originating summons.d.Whether the Respondent is entitled to the reliefs sought in her suit.e.Who shall bear the costs of the consolidated suits.

G. Analysis and Determination a. Whether the Applicant has proved his claim for adverse possession 15. The court has considered the material and submissions on record on this issue. Whereas the Applicant submitted that he had proved his claim for adverse possession by virtue of the longevity of his occupation, the Respondent contended otherwise. The elements of adverse possession were summarized in the case of Kasuve v Mwaani Investments Ltd & 4 others [2004] 1KLR 184 as follows:“….and in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossession of the owner or by the discontinuation of possession by the owner on his own volition, Wanja v Sakwa No 2 [1984] KLR 284. A title by adverse possession can be acquired under the Limitation of Actions Act for part of the land….”

16. Similarly, in the case of Chevron (K) Limited v Harrison Charo Wa Shutu [2016] eKLR it was held, inter alia, that:“At the expiration of the twelve-year period the proprietor’s title will be extinguished by operation of the law and section 38 of the Act permits the adverse possessor to apply to the High Court for an order that he be registered as the proprietor of the land. Therefore the critical period for the determination whether possession was adverse is 12 years and the burden is on the person claiming to be entitled to the land by adverse possession to prove, not only the period but also that his possession was without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land, that the adverse possessor has done acts on the land which are inconsistent with the owner’s enjoyment of the soil for the purpose for which he intended to use it. See Littledale v Liverpool College [1900]1 Ch.19, 21. ”

17. The court has noted that even though the Applicant contended that he entered the suit property in 1997, it is evident from the material on record that it was the deceased who may have taken possession since he claimed ownership of the suit property on account of allocation by the company. The Applicant may have entered the suit property not because he had an adverse claim to ownership of the suit property as against his father or the late Ngororo but because he was the son and family member of the deceased. As such, he could only claim ownership of the suit property on his own account upon the death of his father.

18. The material on record shows that the deceased died in 2016 hence the Applicant could only claim adverse possession in his own right as from the year. In the case of Joseph Mutafari Situma v Nicholas Makhanu Cherongo [2007] eKLR it was held, inter alia, that:“In the circumstances, we are of the view that the appellant did not have independent possession of the land from that of his father and that the appellant’s possession of the land was through his father in his capacity as his son. Moreover, the appellant did not demonstrate that he had the requisite intention to possess the land to the exclusion of all persons including the Respondent during that period.There is no doubt, however, that the appellant’s possession of the land after the death of his father was adverse possession in its ordinary meaning, that is, possession inconsistent with the title of the Respondent. (See Japye (Oxford) Ltd v Graham) (supra). Unfortunately, the possession of the land by the Respondent from 1st June, 1979 to 11th April, 1988 when the suit was filed in for nearly 9 years which is 3 years less than the stipulated 12 years statutory minimum.From the foregoing findings, we have come to the conclusion that the appellant did not prove his claim to the land by adverse possession to the required degree.”

19. The period between 2016 and 2018 when the Respondent filed her suit for recovery of the suit property was barely two years. It is evident from the material on record that the Applicant did not file the claim for adverse possession as an administrator of the estate of the deceased. He filed it in his own right since he conceded at the trial that he had not filed a succession cause for administration of the estate of his late father. The court is thus of the view that the Applicant has failed to prove one critical element of adverse possession.

b. Whether the Respondent has proved her claim for recovery of the suit property 20. The court has considered the material and submissions on record on this issue. It is evident that the Applicant’s claim for adverse possession of the suit property and the Respondent’s claim for recovery thereof are mutually exclusive. The court has already found that the Applicant has failed to prove his claim for adverse possession of the suit property. The Applicant has failed to prove that the Respondent’s right to recover the suit property has been extinguished by operation of law under the Limitation of Actions Act (Cap.22).

21. The material on record demonstrates that the Respondent is the registered proprietor of the suit property. The Applicant’s defence that she obtained registration of the suit property through fraudulent means was not proved at the trial. The award of the tribunal cannot be valid evidence that the late Ngororo or the Respondent obtained the suit property through fraudulent means. It is now well settled in law that a tribunal of the nature which made the award relied upon the Applicant had no jurisdiction to entertain a claim of title to land since the suit property was already registered by 2010 when the claim was lodged before it. The resultant award was certainly a nullity in law and of no legal consequence in view of the provisions of Section 3 of the Land Disputes Tribunal Act, 1990. In the premises, the court is of the opinion that the Respondent has adequately proved her claim for recovery of the suit property.

c. Whether the Applicant is entitled to the reliefs sought in the originating summons 22. The court has already found and held that the Applicant has failed to prove his claim for adverse possession of the suit property. All the reliefs sought in the originating summons were dependent upon the Applicant proving his claim. It would, therefore, follow that the Applicant is not entitled to the reliefs sought in the originating summons, or any one of them.

d. Whether the Respondent is entitled to the reliefs sought in her suit 23. The court has found that the Respondent has proved her claim for recovery of the suit property as the registered proprietor thereof. The court is thus inclined to grant her the eviction order and the permanent injunction sought against the Applicant. However, the court is not satisfied that a sufficient basis was laid for the award of mesne profits of Kshs 15,000/= per annum sought with effect from 2008. Apart from the Respondent’s pleadings in her plaint that she had suffered loss of user and mesne profits to the extent of Kshs 15,000/= per annum there was no evidence tendered at the trial to support that figure. In the circumstances, the court is not inclined to award the Respondent any mesne profits.

e. Who shall bear costs of the suit 24. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason why the successful litigant should not be awarded costs of the action. As a result, the Respondent shall be awarded costs of the consolidated suits.

H. Conclusion and Disposal Order 25. The upshot of the foregoing is that the court finds and holds that the Applicant has failed to prove his claim for adverse possession of the suit property to the required standard. The court also finds and holds that the Respondent has proved her claim for recovery of the suit property on a balance of probabilities. As a consequence, the court makes the following orders for disposal of the consolidated suits:a.The Applicant’s originating summons dated 08. 10. 2019 be and is hereby dismissed in its entirety.b.Judgment be and is hereby entered for the Respondent in terms of prayers (a) &(b) of her plaint dated 16. 10. 2018. However, the prayer for mesne profits is hereby declined.c.The Respondent is hereby awarded costs of the consolidated suits.It is so decided.

JUDGMENT DATED AND SIGNED AT NYANDARUA THIS 14TH DAY OF DECEMBER, 2023 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM....................................Y. M. ANGIMAJUDGEIn the presence of:Mr. Nderitu Komu for the ApplicantMs. Wanjiru Muriithi holding brief for Mr. Waichungo for the RespondentC/A - Carol