[2021] KEELC 2839 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT MOMBASA

ELC NO 161 OF 2013

MONICA WAMBUI KAMAU

ZACHARIA NJENGA KAMAU

(SUING AS LEGAL REPRESENTATIVE

OF THE ESTATE OF JAMES KAMAU THIONGO)...................PLAINTIFFS

VERSUS

GOLDEN SPARROW

TRADING COMPANY LIMITED..........................................1ST DEFENDANT

MJAD INVESTMENT LIMITED............................................2ND DEFENDANT

AFRICA GAS AND OIL CO. LIMITED...............................3RD DEFENDANT

THE REGISTRAR OF TITLES..............................................4TH DEFENDANT

RULING

1. This ruling is in respect of the Notice of Motion dated 30th October 2019 by the 4th Defendant/Applicant seeking the striking out of the plaintiff’s suit for being an abuse of the court process and for dismissal of the suit for contravening the provisions of Sections 7 and 9 of the Limitations of Actions Act. The application is grounded on the grounds in the body of the application and the contents of a supporting affidavit of Samuel K. Mwangi sworn on 30th October, 2019 and a further affidavit sworn by John G. Wanjohi on 1st October, 2020. The application is supported by the 1st, 2nd and 3rd defendants.

2. The application is opposed by the plaintiffs who filed grounds of opposition dated 5th November, 2019, a Replying Affidavit and Supplementary Affidavit sworn by Joseph Nyingi Kamau on 13th January, 2020 and on 29th October, 2020, respectively.

3. Mr. Makuto, learned counsel for the 4th Defendant filed written dated 15th March, 2020 and further submissions dated 28th December, 2020 and also orally highlighted the same. It was submitted that the Government of Kenya issued a notice of intention to acquire the suit parcel of land, LR/NO.MN/VI/755 as required by Section 6(2) of the Land Acquisition Act No. 47 of 1968 vide Gazette Notice No. 737 dated 12th March, 1976, and a Notice of Public Inquiry vide Gazette Notice No. 738 dated 12th March 1976 was issued as required under Section 9(1) of the same Act. That after the inquiry and issuance of awards, the National Treasury authorized payment of a total of Kshs. 7,263,012. 50 to various people vide a payment voucher dated 22nd June, 1976 being compensation for acquisition of various plots in Miritini Industrial and Housing Area at Mombasa Mainland North. It is averred that according to the payment voucher, James Kamau Thiong’o received kshs. 93,553. 70 as compensation for land parcel MN/VI/755. That James Kamau Thiong’o had charged the property to National Bank of Kenya Limited on 6th August 1973, and therefore National Bank of Kenya Limited received kshs. 100,000/=. That Mr. James Kamau Thiong’o was also paid ksh. 17,135/= on 8th September 1977 that had been withheld by the Commissioner of Lands as withholding tax, but which the court held should not be collected. It is averred that these payment was confirmed by the chairman National Land Commission vide a letter dated 16th February, 2017. Copies of the relevant documents have been annexed.

4. The Applicant submitted that on 27th July, 1977 a Notice of Taking Possession and vesting of land in Government was issued and the same was copied to James Kamau Thiong’o, National Bank of Kenya, M/s A.B Patel and Patel Company Advocates and the Registrar of Titles. That the Commissioner of Lands further wrote to James Kamau Thiong’o vide a letter dated 6th February 1979 after inspecting the suit property expressing his intention to take possession of the suit land and noted that “the buildings were vacant and appear to have been vacated.” It was submitted that this position is given credence by the averment of Joseph Nyingi Kamau at paragraph 7 of his Replying Affidavit where he avers that the land they inherited from the late James Kamau Thiong’o “… had been largely unutilized and/or inhabited.” Mr. Makuto submitted that from the evidence on record, it is undisputed that Kenya Gazette Notice Nos. 737 and 738 dated 12th March, 1976 were issued and no evidence of cancellation of the compulsory acquisition process had been produced. Counsel submitted that the Applicant has tendered evidence showing that James Kamau Thiong’o was compensated, that he vacated the suit land and the Government took possession. Further, that the Applicant has supplied evidence to the effect that James Kamau Thiong’o was paid for the compensation of the Land Parcel No. MN/VI/755 together with the development thereon on 26th June, 1976. That after the late James Kamau Thiong’o vacated the suit land, the Government issued a Notice of Taking Possession and vesting of land in Government.

It was submitted that under Section 19 of the Land Acquisition Act the late Thiong’o’s title of land parcel No. MN/VI/755 was extinguished immediately the Government took possession of the suit parcel of land, and never reverted to the original owner or his descendants. It is submitted therefore that the plaintiffs herein have no locus standi to sue for trespass over the suit property herein as the same is owned by the Government.

5. It is further submitted that the suit herein is statute barred and ought to be struck out for contravening the provisions of Section 7 of the Limitation of Actions Act. Counsel for the Applicant pointed out that it is not in disputed that the late James Kamau Thiong’o died on 26th March, 1992 and the letters of Administration to his estate were issued on 16th October, 2010. That the plaintiff then proceeded to file the present suit on 2nd August 2013. In the suit, the plaintiffs seeks declaratory orders, permanent injunction, mandatory orders and other orders whose effect is to enforce the plaintiff’s alleged rights to quiet possession of land Parcel No. MN/VI/755. The Applicant’s submission is that suit land, parcel No. MN/VI/755 was compulsorily acquired by the Government following issuance of Gazette Notice Nos. 737 and 738 dated 12th March, 1976. That pursuant to those Gazette Notices, a notice of taking possession was issued to the late James Kamau Thiong’o on 27th July 1977. It is submitted that the orders sought are contrary to the Government title acquired through the process of compulsory acquisition that was completed in the year 1977 and which was never challenged by the late James Kamau Thiong’o. That it is not in dispute that the suit herein was filed more than 21 years after the death of James Kamau Thiong’o and more than 13 years after letters of administration in respect to his estate were obtained, and about 37 years after the suit property was compulsorily acquired. It is therefore submitted that the suit herein which seeks vacant possession of the suit land is statute barred, the same having been filed more than 12 years after the completion of the process of compulsory acquisition.

6. The plaintiffs through Wameyo Onyango & Associates Advocates filed written submissions on 20th May, 2020. It is the plaintiff’s submission that there are several allegations made by the Applicant which are strongly contested by the plaintiffs. These include that the suit land, MN/VI/755 was compulsorily acquired by the government from James Kamau Thiong’o in 1976 vide Gazette Notice No. 737 of 12th March, 1976 and was paid a total of kshs. 110,690. 70 as compensation, that the government took possession of the land and the title of James Kamau Thiong’o was extinguished, that James Kamau Thiong’o accepted compensation for the land acquired from him, and that the process of acquisition was completed on 12th March, 1976.

The plaintiff’s counsel submitted that all these allegations are denied and vehemently contested by the plaintiffs and the onus is on the 4th defendant to prove the allegations. That such proof must be the subject of a full hearing. It is averred that in the 4th defendant’s records, James Kamau Thiong’o is still the registered owner of the suit land, and the title has neither been cancelled nor extinguished as alleged or at all.

7. The plaintiff’s submission is that the application herein is vague and ambiguous and therefore incompetent. That the applicant has not precisely indicated the sub rule of Order 2 rule 15 of the Civil Procedure Rules upon which the application is premised as the grounds thereon such as that the suit discloses no reasonable cause of action in law or that it is scandalous, frivolous or vexatious or that it may prejudice, embarrass or delay the fair trail of the action or that it is otherwise an abuse of court process, invite different considerations in law. It was further submitted that Gazette Notice No. 737 of 12th March, 1976 was a declaration of intention to acquire the subject land which could not have been concluded on 12th March 1976 as alleged by the 4th defendant contradicts himself by averments in the supporting affidavit which suggest that the process was still continuing after 12th March, 1976. The plaintiff’s submission is that the process of acquisition was never completed and that the 4th defendant. That the 4th defendant was not offered any proof of such completion. The plaintiff’s counsel further submitted that the letter dated 16th February, 2017 is authored by the chairman of the National Land Commission and pointed out- that the National Land Commission was established following the promulgation of the constitution of Kenya 2010. That at the very best the commission could have only reached such a conclusion upon confirming the same from the documents with the 4th defendant which documents, it was submitted, have not been placed before the court. It was also submitted that there is no evidence adduced to show when and how payments were made and that there was contradiction in the 4th defendant’s assertions. The plaintiffs’ counsel submitted that the provisions of Order 2 rule 15 can only be invoked in the clearest of cases and that this is not one such case. It was also submitted by the plaintiffs that where land is compulsorily acquired, it must be used for the purpose for which it was acquired. That in the instant case, the subject property has not been used for the cited purpose. The plaintiff’s counsel relied on the case of Niaz Mohamed Jan Mohamed –vs- Commissioner of Lands & 4 Others [1996] eKLR. It was further submitted that none of the defendants holds any recognizable interest in any portion of MN/VI/755 and that the same is wholly and exclusively owned by the estate of James Kamau Thiong’o.

8. The plaintiff submitted that the objection raised by the 4th defendant that the claim as framed is statute barred lacks any basis in law. This is because in paragraph 10 of the amended plaint, the cause of action leading to the institution of this case are acts of trespass, annex, cut off, alienation, dispossession and unlawful taking possession of part of the deceased’s suit Parcel MN/VI/755 which acts were allegedly committed in or about 2008 in respect to MN/VI/4737 and in the year 2011 in respect of MN/VI/4838, and that the suit herein was filed on 20th June, 2013. It was further submitted that the suit is primarily not about the alleged acquisition but of encroachment. That it is the defendants who have raised the issue of compulsory acquisition. The plaintiffs’’ submission is that the application herein is not well founded in fact and law and is an abuse of the court process and it is intended to delay the hearing and determination of this suit. The plaintiffs urged the court to dismiss the application with costs.

9. I have considered the application and the submissions made. The issues to decide are whether the plaintiffs’ suit is to be struck out for being an abuse of the court process and whether the suit is time barred.

10. I have perused the pleadings herein. In the amended plaint,the plaintiffs pleaded in paragraph 6 that “the deceased estate has always been and still in exclusive possession of the suit parcel, to wit, Plot Number 755/VI/MN.” At the same time, the plaintiffs aver that the defendants have illegally hived off, cut-off and or annexed the suit parcel and/or encroached thereon to give rise to Parcel Number MN/VI/4737 and subsequently Parcel Number MN/VI/4838. The plaintiffs contend that both the said titles were fraudulently obtained. Among the prayers sought by the plaintiffs are a declaration that the titles MN/VI/4737 and MN/VI/4838 were obtained or issued unprocedurally and/or illegally and mandatory order requiring the defendants to vacate and remove at their own costs any buildings, facilities and/or structures put up on portion of land MN/VI/755 that has been encroached, hived and/or curved out to form part of MN/VI/4838.

11. In the application herein, the 4th defendant has exhibited documents showing that the Government issued a notice of intention to acquire the suit parcel of land, MN/VI/755 pursuant to the provisions of the Land Acquisition Act. The Applicant has exhibited Gazette Notice Nos. 737 and 738 dated 12th March, 1976. The applicant has also shown documents indicating that some money was paid to the late James Kamau Thiong’o while some other amount was paid to the National Bank of Kenya Limited to settle a loan that the deceased had taken using the suit property as security. There is also a notice of taking possession and vesting of the land in the Government issued to the deceased on 27th July, 1977. One of the annextures exhibited by the Applicant is a letter dated 6th February, 1979 from the Commissioner of Lands to the late James Kamau Thiong’o expressing intention to take possession and stating that after inspecting the suit property, the same was noted to be “vacant and appear to have been vacated.”

12. In his affidavit sworn on 29/10/2020 in response to the application herein, Joseph Nyingi Kamau has deposed inter alia, that it is not in dispute that Mr. James Kamau Thiong’o acquired the property following the registration of a transfer in his favour at the Lands Registry at Mombasa CR. 4151/17 on 19th April 1969 and that the property was later charged in favour of National Bank of Kenya Limited to secure a loan of kshs. 100,000/= advanced to the late Mr. Thiong’o by the said Bank. He also states that it is not in dispute that vide a Gazette Notice Nos. 737 and 738 dated 12th March, 1976, the commissioner of Lands gave notice of intention to acquire the said Plot (among other plots) by way of compulsory acquisition. Whereas the plaintiffs are in agreement that the Gazette Notice No. 737 of 12th March 1976 was issued pursuant to Section 6(2) of the Land Acquisition Act while Gazette Notice No. 738 of the same date was issued pursuant to Section 9(1) of the said Act, the plaintiffs argue that the 4th defendant/applicant has not demonstrated that a preliminary Notice under Section 3 of the said was ever issued. That the issuance of a Notice under Section 6(2) of the Act is not in itself the culmination of the acquisition process but rather the signaling of the government’s intention to acquire the land.

13. Having looked at the material presented in this case, it is clear that the Government compulsorily acquired the suit land vide Kenya Gazette Notice Nos. 737 and 738 of 12th March 1976. There is no evidence of cancellation of the said compulsory acquisition process that has been produced. Moreover, the Applicant has tendered evidence showing that the late James Kamau Thiong’o was compensated, vacated the suit land and the Government took possession. Regarding the plaintiffs’ argument that the Applicant has not demonstrated that a preliminary notice under Section 3 of the Act was ever issued, this court will invoke the Equity Maxim that states that ‘Equity regards as done that which ought to have been done! This maxim means that when individuals are required by their agreement or by law to have done some act of legal significance, Equity will regard it as having been done as it ought to have. This court has looked at the documents presented, including the evidence of compensation and cannot therefore hesitate to arrive at a conclusion that all preliminary steps must have been undertaken, and the compulsory acquisition process was completed way back in the year 1977 and the plaintiffs’’ title extinguished. I am satisfied that the Government of Kenya is the owner of the suit parcel of land and has been so since 1977. It is therefore my finding that the plaintiffs’ suit is otherwise an abuse of the court process.

14. The other issue to determined is whether the plaintiffs’ claim, if any, is statute barred. It is not in dispute that the late James Kamau Thiong’o died on 26th March, 1992 and Letters of Administration in respect to his estate were issued on 16th October, 2000. The plaintiffs then filed this suit on 2nd August, 2013. In this suit, the plaintiffs seek declaratory orders, injunction orders and other orders whose effect is to enforce their rights to quiet possession of the suit land parcel No. MN/VI/755. The evidence on record, however, indicates that the said parcel of land was compulsorily acquired by the Government following issuance of Gazette Notice Nos. 737 and 738 dated 12th March, 1976. Thereafter, a notice of taking possession was issued to the late James Kamau Thiong’o on 27th July 1977. It is clear therefore that from the material on record, the Government acquired title to the suit property through the process of compulsory acquisition that was completed in the year 1977. There is no evidence that that acquisition was ever challenged by the late James Kamau Thiong’o. This suit was filed on 2nd August 2013, which is more than 36 years from the time the land was compulsorily acquired and more than 21 years after the demise of James Kamau Thiong’o and again more than 13 years after the letters of Administration in respect of the estate of the deceased were obtained by the plaintiffs.

15. Section 7 of the Limitation of Actions Act, Cap 22 Law of Kenya provides as follows:

“7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

Section 9(1) and (2) of the same Act provides thus:

“9 (1) where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discounted his possession, the right of action accrues on the date of the dispossession or discontinuance.

(2) Where a person brings an action to recover land of a deceased person, whether under a will or on intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession of the land, the right of action accrued on the death of death.”

16. The above provisions are clear enough. Any suit founded on recovery of land or seeking vacant possession must be brought within twelve years from the date when the cause of action accrued. In this case, the impugned compulsory acquisition happened in the years 1976-1977. Time started running from then and twelve years lapsed in 1989 or thereabouts. This suit was filed on 2nd August, 2013. It is clear therefore that the suit was filed outside the limitation period and is therefore statute barred and must fail.

17. The upshot of this is that the 4th defendant’s Notice of Motion dated 30th October, 2019 is merited and is allowed. The plaintiffs’ suit cannot be sustained and the same is hereby struck out with costs to the defendants.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 14TH DAY OF JUNE, 2021.

____________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant

C.K. YANO

JUDGE