[2014] KEHC 5620 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE NO. 176 OF 2009 (O.S)

MARGARET NYAKINYUA MURIGU........................PLAINTIFF

VERSUS

CHARLES WAHOME KARIUKI............................DEFENDANT

RULING

MARGARET NYAKINYUA MURIGU, the Plaintiff herein, took out the Originating Summons dated 7th December, 2009 in which she applied for the following orders:

That the title of Karuiru Muchemi (deceased) in respect of the parcel of land Title No. Kirimukuyu/Ngandu/385 occupied by the plaintiff, Margaret Nyakinyua Murigu has been extinguished by virtue of the plaintiff adverse possession thereof and pursuant to the provisions of Section 7 and 17 of the Limitations of Actions Act Cap 22.

That the plaintiff has acquired title by way of adverse possession of the defendant parcel of land Title No. Kirimukuyu/Ngandu/385 and the said parcel of land as occupied and used by the plaintiff has vested in the plaintiff.

That the plaintiff, Margaret Nyakinyua Murigu be registered in place of Karuiru Muchemi (deceased) as the absolute proprietor of parcel of land Title No. Kirimukuyu/Ngandu/385 as occupied and used by the Plaintiff.

The said land parcel Title No. Kirimukuyu/Ngandu/385 as occupied and possessed by the plaintiff be vested and or transferred to the plaintiff.

That the plaintiff has been in occupation and utilizing the said parcel of land Title No. Kirimukuyu/Ngandu/385 since 1973, a period of more than twelve (12) years.

That the Respondent/Defendant as such legal representative of the estate of Karuiru Muchemi (deceased) holds the said parcel of land Title No. Kirimukuyu/Ngandu/385 subject to the plaintiff overriding interest in that parcel of land under Section 30(f) of the Registered Land Act Cap. 300 Laws of Kenya.

The Plaintiff avers that there have been no previous proceedings in any court between the plaintiff and the defendant over the same subject matter other than the Karatina S.R.M.C Succ. Cause No. 23 of 2008 in the matter of the estate of Karuiru Muchemi (deceased) now pending in the said court.

The cost of this suit shall be provided for.

The Plaintiff swore an affidavit in support of the summons. CHARLES WAHOME KARIUKI, the Defendant herein, filed a replying affidavit to oppose the summons. When the summons came up for directions learned counsels appearing in the matter recorded a consent order to have the originating summons disposed of by oral evidence. When the suit came up for hearing the Plaintiff was permitted to proceed exparte when the defendant and his counsel failed to turn up in court despite having notice of the hearing date. In view of the fact that the defendant filed a replying affidavit but failed to attend the hearing, I am constrained to consider it together with that of the Plaintiff.

The evidence supporting the Plaintiff's case can be deduced from the averment's contained in affidavit the Plaintiff swore on 7th December, 2009 and filed in support of the originating summons and the oral evidence she and her witness presented to this court on 14th December, 2011. The Plaintiff made the following important averments which are relevant to this dispute:

First, that the registered owner of the land known is L.R.Kirimukuyu/Ngandu/385 is Karuiru Muchemi who passed away in 1960 leaving behind a widow by the name Wanjiru wa Mbiro.

Secondly, that the aforesaid parcel of land is adjacent to the plaintiff's parcel known as L.R.no.Kirimukuyu/Ngandu/384. Thirdly, that Wanjiru Wa Mbiro, had children who were all killed during the Mau Mau war save for a daughter called Wamuyu who passed without children. It is the Plaintiff's averment that she took care of the deceased's widow having been abandoned by her only daughter.

Fourthly, that in about 1971/1972 it is alleged that the late Wanjiru Wa Mbiro before her demise gave the Plaintiff and her husband title to L.R.no.Kirimukuyu/Ngandu/385 as a gift in appreciation of the care and hospitality extended to her by the Plaintiff and her late husband.

Fifthly, that the Plaintiff has had open and uninterrupted occupation of the aforesaid parcel of land since 1972 to date. The Plaintiff further claimed that she has been ploughing the land and utilizing the same for farming.

In response to the Plaintiff's averments, Charles Wahome Kariuki, hereinafter, referred to as the Defendant filed a replying affidavit he swore on 17th March 2010 to counter the same. The Defendant averred that he was the grandson of Karuiru Muchemi, deceased, the registered owner of L.R.no.Kirimukuyu/Ngandu/385. He claimed both his father and grandfather passed away when he was very young and was taken care of by his aunt. He claimed that when he grew up he visited his grandfather's land and found that he had passed away and that the Plaintiff had started utilizing part of the land. He alleged that he took possession of the remaining bigger portion leaving the Plaintiff with 1/5 of the same. The defendant also averred that the Plaintiff's entry into the land was through a licence given to her by his late grandmother. He further argued that his grandmother had no capacity to grant the licence nor bequeath as a gift since the owner of the land had passed on hence the purported gift was invalid. The Defendant further averred that by the time the deceased passed on in 1960, the Plaintiff had not taken up occupation hence the doctrine of adverse possession will not assist the Plaintiff acquire prescriptive rights. The defendant also averred that the doctrine of adverse possession will not also apply to him because by the time of filing this suit he had merely obtained a grant of letters of administration intestate. The defendant further restated that the plaintiff's possession was not adverse to the title of the registered owner as it was through permission by the deceased's wife and after the death of the registered owner. It is alleged that the said permission or licence lapsed at the deceased's widow's demise.

In her oral evidence, the plaintiff restated the facts she deponed in her affidavit. The plaintiff stated that she was told by Wanjiru Wa Mbiro, that she was blessed with nine sons and all of them were killed during the MauMau war. She stated that the late Wanjiru Wa Mbiro was survived by a daughter who had no children. She denied that the Defendant was a grandson to the deceased. She claimed that the late Wanjiru Wa Mbiro bequeath the land in question before she passed away. She even allowed her to fence the land together with that of her husband. The plaintiff stated that she has cultivated the land since 1974 and was shocked when the defendant came to the land in 2007 claiming to be a grandson. It is alleged he visited the land and started cutting down trees claiming that they were his grandfather's property. The Plaintiff said that she was equally shocked when she learnt that the Defendant had taken up letters of administration with the sole intention of inheriting the suit land without involving her. She produced in evidence the relevant documents leading to the grant of letters of administration of the Estate of Kariuki Muchemi, deceased and the documents proving ownership of the land in question. The Plaintiff also asked Symon Mwangi Kanyi (P.W.2) her neighbour to testify in support of her case. P.W.2 claimed he is aware that the late Wanjiru Wa Mbiro lived with the plaintiff from 1966 until around 1974 when she passed away. Both the Plaintiff and P.W.2 denied knowledge of the defendant. P.W.2 was categorical that the Plaintiff solely utilized the land thus discounting the Defendant's claim that he utilized a bigger portion of land as compared to that utilized by the Plaintiff. P.W.2 stated that he witnessed the Defendant come and destroy the Plaintiff's trees.

Having set out in detail the evidence tendered, let me now restate the ingredients needed to apply the doctrine of adverse possession. In Wambugu =Vs= Njuguna (1983) K.L.R 173, the Court of Appeal restated those principles when it held interalia as follows:

The general principle is that until the contrary is proved, possession in law follows the right of possess.

In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and id not prove that the appellant had either been dispossessed or had discontinued possession of the suit land for a continuous statutory period of twelve years as to entitle him, the respondent, to title to that land by adverse possession.

The Limitation of Actions Act, on adverse possession, contemplates two concepts:dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.

Where the claimant is in exclusive possession of the land with leave and licence of the appellant in pursuance to a valid sale agreement, the possession becomes adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission. The occupation can only be either with permission or adverse; the two concepts cannot co-exist. The respondent occupied the suit land originally under an agreement for sale of land being a licence from the appellant , although the respondent's possession was exclusive and continuous but was not adverse; it only became adverse after the licence was determined.

The rule on “permissive possession” is that possession does not become adverse before the end of the period during which the possessor is permitted to occupy the land. For the respondent's claim for adverse possession to succeed, he must have an effective right to make entry and recover possession of land. He could not have that effective right because the occupation was under a contract, or licence, which had not been determined.

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 v Griffin(1969) 1 WLR 23).

The case before this court appear to be unique in many ways. First, the registered owner i.e Karuiru Muchemi, passed away in 1960 leaving his widow Wanjiru Wa Mbiro surviving him. The widow is said to have moved in with Margaret Nyakinyua Murigu from 1966 until 1974 when she passed on. Both Karuiru Muchemi and his widow Wanjiru Wa Mbiro died before the Law of Succession Act came into effect in 1981. Under Section 2(2) of the Law of Succession Act, the administration of the estate of both deceaseds is under the Kikuyu Customary Law. When Karuiru Muchemi passed away, his widow, Wanjiru Wa Mbiro did not take advantage of the now repealed Sections 120 and 121 of the Registered Act to cause L.R.no.Kirimukuyu/Ngandu/385 transmitted to her.

Secondly, there is no evidence to show that Wanjiru Wa Mbiro succeeded her late husband, the late Karuiru Muchemi.

Thirdly, there is no dispute that the Plaintiff has been in occupation of the land in question for many years. The difficult question is whether that possession and occupation was adverse to the title of the deceased and his successor, the defendant herein.

Let me now apply the ingredients of the doctrine of adverse possession in an attempt to answer the questions posed to this court to answer. The first and most important question is: Whether or not the title of Karuiru Muchemi, deceased over L.R.no.Kirimukuyu/Ngandu/385 has been extinguished by virtue of the Plaintiff's adverse possession pursuant to the Provisions of Sections 7and 17 of the Limitation of Actions Act! The Plaintiff has ably explained orally and by affidavit evidence how she came into occupation and possession of L.R.no.Kirimukuyu/Ngandu/385. It is her evidence that in 1971/72 and before her demise Wanjiru Wa Mbiro bequeath the aforesaid land to her and her late husband in appreciation for the assistance and hospitality the Plaintiff and her husband gave her. In my view, I do not think, the late Wanjiru Wa Mbiro had acquired any proprietory interest over the suit land to enable her bequeath to the Plaintiff. By that time she had not caused the land to be first transmitted to her under the now repealed Sections 120 and 121 of the Registered Land Act. The Plaintiff's possession and occupation of the land in question could not legally be regarded as a gift. The Plaintiff's occupation was basically that of a trespasser as against the legal representative of the Estate of Karuiru Muchemi, deceased. By the time of taking up possession and occupation, strictly speaking there was no known legal representative of the Estate of Karuiru Muchemi, deceased known in Kikuyu language as Muramati (i.e administrator/administratrix). Since the registered owner was dead and the administrator had not been appointed, then the Plaintiff's possession and occupation cannot be said to be adverse to the registered owner's rights. The other issue which is related to this is whether the plaintiff had any cause of action against Charles Wahome Kariuki, the defendant herein. It is not in dispute that the defendant obtained a grant of letters of administration intestate in respect of the estate of Karuiru Muchemi, deceased vide Karatina S.R.M.C Succession Cause no. 23 of 2008 in the year 2009. The defendant does not know whether or not he has applied for confirmation of grant. The plaintiff has rightly cited the defendant in these proceedings in his capacity as the legal representative of the estate of Karuiru Muchemi, deceased. In paragraph 10 of the replying affidavit the defendant avers that he visited the land in dispute in 1975 and occupied the remainder of the land not occupied by the Plaintiff. The defendant acknowledged the fact that the plaintiff has been in occupation. Samuel Mwangi Kanyi (P.W.2) told this court that the Defendant had never taken up possession of the land until he came to cut trees from the land in the month of October 2007. The plaintiff alleged that the Defendant purported to secretly file a Succession Cause at Karatina. The Plaintiff has filed a caveat against any action being taken in execution of the temporary grant of letters of administration issued at Karatina. I am persuaded to believe the plaintiffs that the Defendant purported to forcefully enter the land in question after he was issued with the temporary letters of administration over the estate of Karuiru Muchemi, deceased on 5th November 2009. If it is true that the Defendant went to that land in 1975, then why did he wait until 2008 and purport to succeed the deceased. The Defendant cannot purport to disrupt the occupation and possession of the plaintiff which he knows has been in existence since 1966 up to date. In the circumstance, it is difficult for the defendant to assert his rights if he knew as early as 1975 that the Plaintiff was in occupation and chose to delay in taking up letters of administration. The defendant avers he is entitled to inherit the suit land because he was a grandson to the registered owner. If I take it to be true that the defendant came to know of the Plaintiff's possession and occupation in 1975 and he waited until 2008 to succeed his grandfather, I think the doctrine of equitable estoppel will work against him. The defendant knew very well that the Plaintiff had occupied the suit for over 33 years at the time when he applied for letters of administration but chose to bid his time. It is curious to note that in paragraphs 18 and 19 of the replying affidavit in response to the Chamber Summons dated 7th December 2009, the Defendant avers that it was merely one year since he obtained letters of administration in respect of the Estate of Karuiru Muchemi, deceased. In fact, I can equate this to a scenario where a land owner whose title has been extinguished by effluxion of time purports to transfer his land to a third party. Courts have always ruled that change of title does not affect accrued prescriptive rights. In the case before this court, I can truly infer from the conduct of the Defendant that he knew that Karuiru Muchemi's title to L.R.no.Kirimukuyu/Ngandu/385 had been extinguished by effluxion of time and as a legal representative he was estopped from asserting rights to recover the land. The Plaintiff's made her intention known when she extended her agricultural activities of planting trees, nappier grass and growing crops to the adjacent parcel unused by the owner, fenced it to include hers. Those acts are adverse to the title of the Estate of the registered proprietor and his successors. In my humble view, I am convinced that the Plaintiff has established her claim against the Defendant. In the end, I grant judgment in favour of the Plaintiff and against the Defendant in the following terms:

Margaret Nyankinyua Murigu Plaintiff is hereby declared to have acquired L.R.Kirimukuyu/Ngandu/385 by adverse possession hence the same is vested to the Plaintiff.

The Land Registrar or the authorised officer is hereby directed to cancel the name of Karuiru Muchemi from the register and in its place replace with that of Margaret Nyakinyua Murigu.

The Defendant is condemned to pay costs of the suit to the Plaintiff.

Dated, Signed and delivered in open court this 21st day of February, 2014.

…...............

J.K.SERGON

JUDGE

In the presence of:

Mr. Kiboi holding brief for Gathara for Plaintiff

In the absence of Mr. Kamwenyi for Defendant

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