[2022] KEELC 3478 (KLR)

Nguthi & 28 others v Mungai & 3 others (Environment & Land Case 120 of 2013) [2022] KEELC 3478 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEELC 3478 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 120 of 2013

LN Mbugua, J

May 12, 2022

Between

Jackson Muiruri Nguthi

1st Plaintiff

Joseph Kirai Mwarania

2nd Plaintiff

Gideon Munda Jason Gwayi

3rd Plaintiff

Henry I. Mpapalee

4th Plaintiff

Joan Wanjiku Karanja

5th Plaintiff

John Ernest Ngatti

6th Plaintiff

Martin Karanja Waikwa

7th Plaintiff

Nicholas Ontita Mosigisi

8th Plaintiff

Richard Momanyi

9th Plaintiff

Simon Mukundi Mwangi

10th Plaintiff

Rodar Kandagor

11th Plaintiff

Annah Kerubo Okerio

12th Plaintiff

Crispinus Onyango Karani

13th Plaintiff

Edward Esbon Akastsa Keya

14th Plaintiff

Evans Okemwa Nyabuti

15th Plaintiff

George Njiru Njoka

16th Plaintiff

Isaac Gekonge Gesage

17th Plaintiff

Joseph W. Kamau

18th Plaintiff

Kariuki Kibui

19th Plaintiff

Kinyua Kariuki

20th Plaintiff

Morgan Muranda Chimi

21st Plaintiff

Samson Mayuya Amoro

22nd Plaintiff

Samson Nyakundi Machuki

23rd Plaintiff

Samwel Mogaka Osoro

24th Plaintiff

Kenneth Micheni

25th Plaintiff

John Mukonyi

26th Plaintiff

Francis Thiongo Kamau

27th Plaintiff

Geoffrey Kuria Kamau

28th Plaintiff

Njoki Kinyenje

29th Plaintiff

and

Moses Ndungu Mungai

1st Defendant

Simon Ndunda Metho

2nd Defendant

Kasiva Nzomo Ngwalo

3rd Defendant

Mita Nzomo Ngwalo

4th Defendant

Judgment

1. This suit instituted through Originating Summons filed on 24th January 2013 seeks proclamation that the Plaintiffs are entitled to ownership and registration of parcels of land on LR No. Mavoko Town/Block 2/9246, LR No. Mavoko Town/Block 2/9247, Mavoko Town Block 2/38 and LR No. Mavoko Town/Block 2/88 by virtue of adverse possession. The Plaintiffs seek determination of the following:i.Whether the Plaintiffs are entitled by virtue of adverse possession to all those parcels of land known as LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247 Mavoko Town Block 2/38 and Mavoko Town/Block 2/88 which are registered in the names of the defendants.ii.Whether the Plaintiffs should be registered as proprietors of all those parcels of land known as LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247, Mavoko Town Block 2/38 and Mavoko Town/Block 2/88 which are registered in the names of the defendants.iii.If answers to (a) and (b) above are in the affirmative, whether the court should make declarations and orders directed to the Lands Registrar Machakos to give effect to the said findings.iv.Whether the Plaintiffs should be paid costs of this suit.

2. The Originating Summon supported by the sworn affidavit of Martin Karanja Waikwa and Evans Okemwa Nyabuti the 7th and 15th Plaintiffs respectively, is premised on the grounds that the Plaintiffs have been in continuous and uninterrupted use of the suit lands for a period of over seventeen years since 1995 with full knowledge of the Defendants who are the registered owners of the lands.

3. They averred that they bought their parcels of land from Okoa Development Company Ltd, of which the plots were in parcel LR. No. Mavoko Town/Block 2/49, 2/38 and 2/88. That Okoa development company was related to 1st defendant in whose name parcel 2/49 was registered . That the said company claimed to have bought the rest of the parcels, 2/38, and 2/88 from the 2nd 3rd and 4th Defendants.

4. The Plaintiffs outlined how LR No. Mavoko Town/Block 2/49 was subdivided into several plots resulting in L.R. No Mavoko Town/Block 2/5459 which was further subdivided into LR No. Mavoko Town/Block 2/9246 and Mavoko Town/Block 2/9247 in current occupation of the Plaintiffs.

5. The 1st Defendant in his sworn affidavit dated and filed on 12th April 2013 stated that he was the Director of Okoa Development Company Ltd. He affirmed that he purchased LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247 and Mavoko Town/ Block/2/88 from the 2nd, 3rd and 4th Defendants, subdivided and sold them off. He however contended that the Plaintiffs were not in occupation of the aforementioned parcels adding that they were not entitled to the said lands by virtue of adverse possession because they had purchased parcels of land for consideration of value although they still had outstanding balances save for the 11th Plaintiff.

6. No pleadings were filed for and on behalf of the rest of the defendants. The 1st defendant also did not turn up during the hearing of the case.

7. PW1 Evans Okemwa is the 15th plaintiff. He introduced himself as a civil servant working with the Ministry of Education in Kakamega. He relied on the affidavit dated 20th December 2012 filed alongside the Originating summons as his evidence. He also produced the documents annexed in the said affidavit as Exhibits 1- 4. He testified that in total, they are 29 plaintiffs. They know each other. That after buying the land from Okoa Development Company, they constructed or fenced their respective plots and took possession. He developed his land in 2001 but had been in possession of the same earlier on.

8. PW2 Martin Karanja is the 7th plaintiff. He is a retired police officer and he also adopted their joint affidavit dated 20th December 2012 as his evidence. He contends that he had been in quiet occupation of his plot on the suit property from year 2000.

9. It was submitted orally for the plaintiffs that they had established ingredients of adverse possession because the said land was sold to the Plaintiffs by Okoa Development Company which was not the registered owner of the said land and as such the sale could not go through. That the plaintiffs moved into the suit plots in year 1995. That the Plaintiffs have been living in the suit parcels namely; LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247, Mavoko Town/ Block/2/38 and Mavoko Town Block 2/88. Reference was made to the case of Stephen Njoroge Kiboli v David Mwaele Nguli [2019] eKLR in which the learned Judge held:“…Change of Title of land occupied under adverse possession cannot defeat the overriding interest…”Analysis and DeterminationWhether the Plaintiffs claim for adverse possession is merited is the issue for determination.

11. The Plaintiffs state that they purchased the plots of land from Okoa Development Company and have been in possession of the same dating back to 1995. They claim adverse possession because they have exclusively used the said plots without disturbance.

12. The Plaintiffs produced ownership certificates as evidence of being in legal possession of the said lands. The Court has reviewed the said certificates and notes that the Plaintiffs are in possession of certificates with diverse dates dating from 1995 to 2011.

13. The Plaintiffs adduced Certificates of official search with the following information: The Certificate dated 8th January 2009 showed that as of 11th June 2003 the proprietor of Mavoko Town Block 2/49 was Moses Ndungu Mungai (1st Defendant) which title was closed on 24. 6.2003 to give rise to resulting parcels namely 5459 and 5460. Two other searches dated 14th January 2009 for Mavoko Town Block 2/5459 showed that the proprietor was Moses Ndungu Mungai as of 24th June 2003; and title number Mavoko Town Block 2/5460 as of 26th June 2003 was in the name of Relisa Housing Cooperative Society Ltd. The plaintiffs are not claiming this particular parcel of land. (5460).

14. Two searches search dated 14. 2.2012 showed that 1st defendant was registered as the owner of parcels Block 2/9247 and Block 2/9246 as at 15. 10. 2008 but there were court orders stopping any dealings in the aforementioned parcels of land.

15. Yet another search certificate is dated 8th January 2013 showing that Mavoko Town Block 2/88 was in the name of Kasiva Nzomo Ngwalo (3rd defendant) as at 20. 11. 1991 and it then went to Mita Nzomo Ngwalo (4th Defendant) in February 1992.

16. The search for Mavoko Town Block 2/38 dated 8. 1.2013 shows that as of 20th November 1991, it was under Simon Ndunda Metho (2nd Defendant).

17. It has been held that for a claim of adverse possession to be sustained, the claimant’s acts ought to be nec vi, nec clam,nec precario (to mean: neither by force, nor secretly and without permission).The Court of Appeal in Prisca Narotso Etyanga v James Gitau Gachaiya Suing on behalf of a Legal Representative of Elizabeth Njeri Gitau [2017] eKLR made reference toSamuel Kihamba v Mary Mbaisi [2015] eKLR that;“Strictly, for one to succeed in a claim for adverse possession one must prove and demonstrate that he has occupied the land openly, that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. … These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario…”

18. The Claimants bought the land from the Okoa development company and took possession thereof before or in year 2000. However, the said company apparently did not own the land. Nevertheless, the defendants were aware of the sale and occupation but did not assert their claim. The 1st Defendant who had even filed an affidavit in opposition to the suit did not bother to defend the suit during the trial hence the contents of his pleadings are of no consequence.

19. The end result is that plaintiff’s claim is found to have merits. The plaintiffs have given an account of why they are claiming parcels block2/9246 and Block2/9247. These plots apparently emanated from parcel Block 2/5459 which in turn had emanated from Block 2/49. And as per the search dated 8. 1.2009 for this parcel 2/49, 1st defendant was registered as the owner on 11. 6.2003. As rightly submitted by the plaintiff, any subsequent change of title cannot defeat their claim of adverse possession, see Stephen Njoroge Kiboli v David Mwaele Nguli[2019] eKLR (supra).

20. The final orders are given as follows;1. It is hereby declared that the Plaintiffs are entitled by virtue of adverse possession to all those parcels of land known as LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247, Mavoko Town Block 2/38 and Mavoko Town/Block 2/88 which are registered in the names of the defendants.2. An order is hereby issued for the Plaintiffs to be registered as proprietors of all those parcels of land known as LR No.s Mavoko Town/Block 2/9246, Mavoko Town/Block 2/9247, Mavoko Town Block 2/38 and Mavoko Town/Block 2/88 in respect of the various plots which they occupy.3. The Land Registrar Machakos is directed to give effect to the findings in (2) above.4. Each party is to bear their own costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-B.M. Musyoki for the PlaintiffsCourt Assistant: June Nafula