[2020] KEELC 3526 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI LAW COURTS

ELC CASE NO. 431 OF 2012

MARY WANGUI MUHINDI..............................................................PLAINTIFF

VERSUS

WAMBUI KAMITHI & 2 OTHERS...............................................DEFENDANT

JUDGEMENT

1. The Plaintiff filed this suit against the Defendants seeking the following reliefs:-

a. A permanent Injunction restraining the Defendants and/or their servants, agents, employees and any other person acting under their authority from interfering, entering trespassing, constructing structures or in any manner dealing with L.R No Dagoretti/ Ruthimitu/T.243.

b. An eviction order to issue against the Defendants, their agents or servants removing them from L.R Dagoretti/ Ruthimitu/T.243.

c. General damages for Trespass.

d. Costs of this suit.

2. By an amended defence and counter claim dated 27th February 2017 the Defendants sought the following reliefs:-

a. The Plaintiff suit herein be dismissed with costs.

b. A declaration that the Defendants are the proprietors of all that parcel of land known as Dagoretti/Ruthimitu/t/243 having acquired ownership rights under doctrine of Adverse Possession.

c. That this Honourable Court orders for the registration of the Defendants as proprietors and that a certificate of lease be issued in their favour.

d. Costs of this suit be awarded to the Defendants.

3. The Plaintiff is the registered owner of LR Dagoretti/Ruthimitu/T.243 (suit property). The suit property was allocated to the Plaintiff through an allotment letter dated 9th October 1995. The Plaintiff subsequently processed title which was issued on 4th May 2006. The plaintiff testified that when the property was allocated to her, it was vacant government land. The allocation was done after the necessary approval was obtained. In 2012, the Defendants encroached on to the suit property.

4. The Plaintiff has been trying to get the Defendants to move out of the suit property but the Defendants have refused to move out claiming that the suit property is government land. The Plaintiff testified that she has made attempts to construct on the suit property and that each time she delivers building materials; the materials are destroyed at the instigation of the Defendants. It is on this basis that she filed this suit claiming the reliefs in the Plaint.

5. The second Defendant testified as the first defence witness. He stated that he has been in the suit property since 1968. He stated that he was allocated the suit property by the area chief as he had nowhere to reside. The second Defendant was allowed to reside on the suit property together with the mother of the 1st Defendant. In 2012, houses which he had put up and rented out to tenants were razed down. This is the first time that he came to learn that the Plaintiff had title to the same.

6. The 3rd Defendant testified that she is a caretaker in the suit property. She takes care of rental houses which were put up by the 2nd Defendant who does not reside on the suit property. She collects rent and remits it to the 2nd Defendant. In 2012 there was a fire incident which gutted down the house on the suit property. The 2nd Defendant rebuilt them and added more houses.

7. I have considered the evidence by the Plaintiff and that of the Defendant. I have also considered the submissions by the parties. The issues which emerge for determination are firstly whether the Defendants have acquired the suit property by adverse possession Secondly whether the Plaintiff is entitled to an order of eviction and general damages and lastly whether the parties are entitled to their respective prayers in the Plaint and counterclaim.

8. As I have already indicated herein above, there is no contention that the Plaintiff is the registered owner of the suit property. Though the Plaintiff claimed in her evidence that the Defendants trespassed to the suit property in 2012, when she was cross examined by the Defendant’s counsel, she conceded that there were structures in the suit property as at 1997.

9. I have no reason to doubt the 2nd Defendant’s evidence that he was given the suit property so occupy on temporary basis by the local chief. As the 2nd Defendant concedes, he was informed that the suit property was government land and that anytime, he could be liable to removal from the same.

10. The Plaintiff produced an extract of the register which shows that the suit property was government land from 27th may 1959. The property remained government land until it was registered in the name of the Plaintiff on 4th May 2006 upon allocation which was preceeded by government approval. The law relating to a claim for adverse possession is that one cannot claim adverse possession against government land. In considering whether the Defendants have acquired the suit property by way of adverse possession, the period will start running when the Plaintiff became the registered owner. In the instant case, the suit property ceased to be government land on 4th May 2006 when the Plaintiff became the registered owner.

11. The time for purposes of the Defendant’s claim started running on 4th May 2006. The Plaintiff filed this suit on 23rd July 2012. It is therefore clear that as the time this suit was filed, the Defendants had been in occupation for slightly over six years. This period is short of the statutory period of twelve years required. The Defendants in their submissions argued that the time for purposes of limitation started running from 1995 when allocation was made to the Plaintiff. This argument is without basis. The doctrine of adverse possession can only come into play against a known registered owner. Prior to registration, time cannot start running. It is only upon issuance of titles and entry of the owner in the register which can be used for computation as to when time starts running. See the case of Cherron (K) Ltd Vs Harrison Charo (2016) eKLRwhere the Court of Appeal held that time does not run against land held by government and time could only start running upon registration of a proprietor as owner of land.

12. It is therefore clear that the Defendants have not acquired the Plaintiff’s land by way of adverse possession.

13. The Plaintiff is the registered owner of the suit property. She became the registered owner through a process which has not been faulted. The 2nd Defendant who claims that land together with the 1st defendant have no basis to their claim. If the Defendants wanted to have the land, they should have applied for it from the government .The government can allocate its land to any person. As the Defendants have no basis to remain on the land, I find that the Plaintiff is entitled to an order of eviction.

14. There was an argument by the Plaintiff that the Defendants’ suit cannot be based on a counter-claim but through originating summons. In support of this, the Plaintiff relied on the cases of Kasuve Vs Mwaari Investments, Ltd & 4 Others (2004) 1 KLR 184. The case of Kasuve is no longer good law because there have been subsequent decision which have held that adverse possession can be raised in a defence or counter-claim or by way of Plaint as was held in the Cherron (K) Ltd Case (supra)which also referred to the case of Mariba Vs Mariba (2007) eKLR.

15. From the above analysis; it is therefore clear that the Defendants have failed to prove their counter-claim. The same is hereby dismissed with costs to the Plaintiff. On the other hand, I find that the Plaintiff has proved her claim against the Defendants on a balance of probabilities. The Plaintiff’s claim is allowed in terms of prayers (a) ,(b) (c) and (d) of the Plaint.

Dated, Signed and delivered at Nairobi on this 13th day of February 2020.

E.O.OBAGA

JUDGE

In the presence of:

Mr Kabungu for Mr Gatamuta for Plaintiff and M/s Gachohi for M/s Chirchir for Defendant.

Court Assistant: Hilda

E.O. OBAGA

JUDGE