[2021] KEELC 3804 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 42 OF 2017 (O.S)

IN THE MATTER OF SECTION 38 OF THE LIMITATION OF ACTIONS ACT CAP 22

AND

IN THE MATTER OF L.R. NOS.

GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 AND 2312

MUCHAMBINDWIGA.....................................................1ST PLAINTIFF

JEREMIAH MUCHIRA MUCHAMBI..........................2ND PLAINTIFF

VERSUS

OCTAVIAN MWANIKI KARIUKI....................................DEFENDANT

JUDGMENT

Summary of facts

The Plaintiffs herein filed an Originating Summons application on 27th March 2017, praying for orders to be registered as the proprietors of Land Parcel Numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312 (hereinafter referred to as the ‘Suit Properties). The application seeks for the determination of the following questions in favour of the Plaintiffs, namely:

1. Whether the Plaintiffs have been in open, continuous, uninterrupted and exclusive occupation, possession and use of the whole of land parcel numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312, which are the resultant numbers of subdivision of parcel numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 since 1995 and the years before, a period of more than 12 years?

2. Whether the Defendant’s title to land parcel numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312 have been extinguished.

3. Whether the Plaintiffs have acquired the titles to land parcel numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312 by way of adverse possession.

The Originating Summons application is supported by the affidavit of the 1st Plaintiff. He avers that Land Parcel Numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 were registered in his name. That there was an eviction order issued against him in 1994 pursuant to Murang’a Civil Case No. 130 of 1987, but that the eviction order had not been executed even at the date of filing suit. That his family along with that of the 2nd Plaintiff have been living on the land since 1990 in an open continuous and uninterrupted manner and have therefore acquired the titles to the Suit Properties by way of adverse possession.

The Defendant entered appearance and filed his replying affidavit on 06th April 2017. He avers that he purchased Land Parcel Numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 from the 1st Plaintiff between 2nd June 1974 and 31st March 1986 for a consideration of Three thousand, Seven Hundred and Twenty Shillings Only (Ksh. 3,720). That after receiving the full consideration, the 1st Plaintiff refused to transfer the parcels of land to him, prompting him to file Civil Case No. 139 of 1987 in the Senior Magistrate Court at Murang’a. On 2nd June 1991, a ruling was made in favour of the Defendant (then, Plaintiff) and the 1st Plaintiff herein (then, Defendant) was ordered to transfer Land Parcel Numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 to the Defendant. Pursuant to the order, the Defendant applied for and obtained consent for the transfer from the Land Control Board, but the 1st Plaintiff refused to sign the transfer forms. The same were signed by the Senior Resident Magistrate Murang’a and the parcels gazette under Kenya Gazette No. 4680 of October 1991. That the resultant titles to Land Parcel Numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 were registered in the name of the Defendant on 22nd November and 30th September 1991 respectively. That consequent to the registration of the parcels in favour of the Defendant, the 1st and 2nd Plaintiffs along with their families refused to move from the property and on 17th February 1994, eviction orders were issued in Civil Case 130 of 1997 by the Resident Magistrate sitting at Murang’a. That the Plaintiffs and their families were evicted by Messrs. K.S Kimotho Auctioneers who wrote a letter to the Senior Resident Magistrate Court, confirming that the eviction exercise had been carried out and the Defendant put in possession and occupation of the land. The Defendant avers that he moved in, fenced the plot and planted coffee and other crops. On 20th April, the 1st Plaintiff appealed the ruling in Murang’a Civil Case No. 130 of 1987, but the same was withdrawn. That on 24th September 2000, the Plaintiffs trespassed upon the Defendant’s land, built semi-permanent structures and destroyed the coffee plantation. The Defendant reported the matter to the police and Criminal Case no. 811 of 2000 was preferred against the 1st plaintiff. The Court found the 1st plaintiff guilty of trespass and convicted him. That on 26th August 2008 a District Surveyor went to the parcel of land and subdivided the two parcels into 12 parcels, constituting

the Suit Properties. That the Defendant then left the country for India and on return, found that the Plaintiffs had trespassed on his parcel of land once again. He avers that he is not able to access his land as goons have been hired to keep him out.

Submissions

The Defendant filed his written submissions on 06th January 2020. He reiterated the contents of his replying affidavit and cited the case of Wambugu Vs Njuguna (1983) KLRand Maweu Vs Liu Ranching Farming Co-operating Society (1985) KLRin support of the fact that the Plaintiffs had not satisfied the necessary ingredients of the doctrine of adverse possession, being peaceful open and continuous possession with the knowledge of the registered proprietor. He also submits that the Plaintiffs have not established which plots, of the 12 subdivisions they occupy and consequently have failed to extinguish the Defendant’s title to the Suit Properties.

The Plaintiffs filed their submissions on 19th February 2020. They reiterate the contents of the 1st plaintiff’s supporting affidavit and cite the case of Mtana Lewa Vs Ngala Mwagandi (2015) e KLRand Njuguna Ndatho Vs Masai Itumo & 2 Others (2002) e KLR in support of the assertion that they have satisfied all the requisite ingredients of adverse possession. They urge the court to take into consideration that time started running in 1994, making their occupation of the Suit Properties, well in excess of the mandatory 12 years.

Issues for determination

1. Whether the Plaintiffs have been in open, continuous, uninterrupted and exclusive occupation, possession and use of the whole of land parcel Numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312, which are the resultant numbers of subdivision of parcel numbers GICHUGU/SETTLEMENT/SCHEME/1357 and 1358 since 1995 and the years before, a period of more than 12 years?

2. Whether the Defendant’s title to land parcel numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312 have been extinguished.

3. Whether the Plaintiffs have acquired the titles to land parcel numbers GICHUGU/SETTLEMENT/SCHEME/2301, 2302, 2303, 2304, 2305, 2306, 2307, 2308, 2309, 2310, 2311 and 2312 by way of adverse possession.

Legal analysis and opinion

The court has evaluated the rival submissions and affidavits of counsel and taken into consideration the authorities cited.

The doctrine of adverse possession is embodied in Sections 7 and 13 of the Limitation of Actions Act (Cap 22). The sections are set out here verbatim, as a necessary first step in the discussion:

Section 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 13:(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where undersections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.

(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land

(3)For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.

Section 38 of the Act gives guidance on the procedure to be followed by a person claiming adverse possession. It is the Section under which the present suit has been filed:

“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.(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.”

The doctrine of adverse possession, being a common law doctrine has been the subject of numerous decisions, each of which has enriched and clarified the considerations to be taken into account by Court called upon to make a determination as to whether or not the doctrine is applicable in the case before them.

The Court of Appeal case, Mtana Lewa Vs Kahindi Ngala Mwagandi [2015] e KLR,a portion of which has been cited by the Plaintiffs defines the doctrine of adverse possession and the circumstances giving rise to the same:

“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”

The case ofGabriel Mbui Vs Mukindia Maranya [1993] e KLR,while noting that the Limitation of Actions Act does not provide a definition for adverse possession attempted a simplified definition of the doctrine in the following words:

“…It is possible to define “adverse possession” more fully, as the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owners enjoyment of the land for the purposes for which the owner intended to use it.’

The ingredients of the doctrine of adverse possession were succinctly captured by the Court of Appeal case in Wambugu Vs Njuguna (1983) KLR 173 as follows:

“Adverse Possession contemplates two concepts: Possession and discontinuance of Possession. It further held that the proper way of assessing proof of Adverse Possession would 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 or she has been in Possession for the requisite number of years.”

The case of Jandu Vs Kirplal & Another (1975) EA 225 provided helpful amplification of the matters to be considered within the two concepts advanced by the Wambugu Vs Njuguna decision above. The Court held as follows:

“…to prove title by Adverse Possession, it is not sufficient to show that some acts of Adverse Possession must be adequate in continuity, in publicity and in extent to show that it is Adverse to the owner. It must be actual, visible, exclusive, open and notorious.”

Further guidance is found in the Court of Appeal decision in Ruth Wangari Kanyagia Vs Josephine Muthoni Kinyanjui [2017] e KLR:-

“In the eye of the law, an owner would bedeemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession by clearly asserting title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is“nec vi, nec clam, nec precario”, that is, peaceful, open and continues. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

While it is evident that a person claiming adverse possession needs to first demonstrate actual occupation of another’s land, without the consent of that other, and in such a manner as the occupation is open and peaceful and secondly that such occupation remains unbroken for a period not less than 12 years, the manner in which that occupation has come about needs to be in keeping with the Court of Appeal decision in Kweyu Versus Omutut[1990] KLR 709, where the court observed as follows:

“By adverse possession is meant a possession which is hostile, under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous. When such possession is continued for the requisite period (12 years), it confers an indefeasible title upon the possessor. (Colour of title is that which is a title in appearance, but in reality). Adverse possession is made out by the co-existence of two distinct ingredients; the first, such a title as will afford Colour, and, second such possession under it as will be adverse to the right of a true owner. The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely. These terms (“claim or colour of title”) mean nothing more than the intention of the dispossessor to appropriate and use the land as his own to the exclusion ofall others irrespective of any semblance or shadow of actual title or right. A mere adverse claim to the land or the period required to form the bar is not sufficient. In other words, adverse possession must rest on de facto use and occupation. To make a possession adverse, there must be an entry under a colour of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use done publicly and notoriously.”

Kuloba J, as he then was in the case of Gabriel Mbui Vs Mukindia Maranya [1993] e KLR also made certain additional observations on the manner of occupation as follows:

“a) The intruder resisting suit or claiming right by adverse possession must make physical entry and be in actual possession or occupancy of the land for statutory period.

b) The entry and occupation must be with, or maintained under, some claim or colour of right or title, made in good faith by the stranger seeking to invoke the doctrine of adverse possession as against everyone else.

c) The occupation of land by the intruder who pleads adverse possession must be non- permissive use, i.e. without permission from the true owner of the land occupant.

d) The non-permissive actual possession hostile to the current owner must be un equivocally exclusive, and with an evinced unmistakable animus possidendi.that is to say occupation with the clear intention of excluding the owner as well as other people.

e) The possession by the person seeking to prove title by adviser possession must be visible, open and notorious, given reason for notice to the owner and the community, of the exercise of dominion over the land,

f) The possession must be continuous uninterrupted, unbroken, for the necessary statutory period.

g) The rightful owner must know that he is ousted. He must be aware that he had been dispossessed, or he must have parted and intended to part with possession.”

An evaluation of the present facts under the litmus of the foregoing decisions reveals the following:

The first limb requiring proof, that of occupation that is open and peaceful by a person on the land under a colour of title has not been satisfied. This is because of the following factors emergent from the pleadings:

1. The Plaintiffs do not contest that they in fact sold Land Parcel Numbers Gichugu/Settlement/Scheme/1357 and 1358 to the Defendant. Once the transfers were executed and the title deeds registered in the Defendant’s name in 1991, the Plaintiff’s right to the land was extinguished. They do not show any colour of title under which they purport to still be in occupation of the Suit Property. They indeed agree that they are and have been trespassers thereon. As observed, it is necessary for a person claiming ownership under adverse possession to show a belief held, even where that belief is untrue, as to their entitlement to the property.

2. Secondly and more obviously, the Plaintiff’s occupation of the Suit Properties has been anything but peaceful. The Plaintiff’s occupation has been dodged with one suit after another from the very beginning. First off, the transfer of land to the Defendant was made pursuant to a court order in Murang’a Civil Case no. 139 of 1987. Then after the transfers were done and titles registered in the Defendant’s name in 1991, the Defendant filed suit in Murang’a Civil Case 130 of 1997, consequent to which eviction orders were issued removing the Plaintiff from the land. When the Plaintiffs again encroached on the

Defendant’s land in 2000, the Defendant instituted criminal proceedings in Criminal Case No 811 of 2000 in which the 1st Plaintiff was charged and convicted of Trespass. Then on 26th August 2008, the District Surveyor, on the Defendant’s instructions moved into the land and subdivided the two parcels into 12 subdivisions, that is the Suit Properties. The survey Report was filed and is marked OMK-16.

It is very curious that the Plaintiff’s deny that that the subdivision was actually done when they filed in this court certificate of searches for all the twelve properties registered in the Defendant’s name.

On the second limb of continuous, uninterrupted occupation of a period not less than 12 years, the Plaintiffs urged the court to start the countdown from 1995 but also noted that they had been in occupation since 1990. It is trite knowledge that time cannot start running before the land is in the proprietorship of the person against whom adverse possession is claimed. See - Titus Kigoro Munyi Vs Peter Mburu Kimani Civil Appeal No. 28 of 2014 [2015] e KLR where the Court of Appeal held that the limitation period for purposes of adverse possession only starts running after registration of the land in the name of the Respondent. In the case of Francis Gitonga Macharia [supra] the Court stated as follows:-

“We have considered this appeal with anxiety. It is quite clear from the affidavit in support of the Originating Summons that as at the date of the suit the prescribed twelve years limitation period for bringing an action based on adverse possession of land had not run in favour of the Appellant. He deponed that he went into possession of the suit land sometime in March 1974. As at that date, the Respondent had not become a registered owner of the suit land. As we stated earlier he became registered as owner on 16th December, 1974 and by 15th April 1986, a period of twelve years had not run. Consequently, the Appellant’s claim based on adverse possession was premature and therefore incompetent.”

In the above analysis of facts, it has been demonstrated that as late as 2008, the Defendant had caused a surveyor to enter into the land for the purpose of subdivision. In the premises, it cannot be shown that the Plaintiff’s stay has been uninterrupted.

InAbulitsa Vs Albert Abulista, Kakamega HCCC No. 86 of 2005 (UR)the court found as follows in respect of interruptions on occupation.

“Section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya entitles a person to be registered as proprietor instead of the registered proprietor where such person establishes by evidence that he or she has become entitled to be registered on account of his or her occupation of the land, openly and continuously and without interruption and with the knowledge of the registered owner for a period of twelve years or more adversely to the title of the registered owner. In other words, 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 years, the trespasser is entitled to apply 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.”

From the foregoing, the Plaintiffs have failed to satisfy the necessary ingredients for the application of the doctrine of adverse possession and their suit fails. Consequently, this suit is hereby dismissed with costs to the defendant.

JUDGMENT READ, DELIVERED PHYSICALLY AND SIGNED IN OPEN COURT AT KERUGOYA THIS 19TH DAY OF MARCH, 2021.

.............................

E.C. CHERONO

ELC JUDGE

In the presence of:-

1. Ms Wambui holding brief for Maina Kagio

2. Ms Makazi holding brief for Momanyi

3. Kabuta – Court clerk.