[2017] KEELC 3726 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELC NO 1907 OF 2007(OS)

IN THE MATTER OF LIMITATION OF ACTIONS ACT

AND

IN THE MATTER OF THE REGISTERED LAND ACT AND

LAND REFERENCE NUMBER KIAMBAA/KIHARA/T181

BETWEEN

1. NJUGUNA MANGARIA (DECEASED)

2. WINSTON WARUIMBA NJUGUNA ………………..…...…PLAINTIFFS

=VERSUS=

1. EVA MATINDI

2. MARGARET GACIKU MATINDI ……………………...….DEFENDANTS

JUDGMENT

The Plaintiffs herein Winston Waruimba Njuguna and Njuguna Mangaria(Deceased) by this Originating Summons dated 14th June, 2006 has sought for these declarations:-

1. That the Plaintiffs are entitled to be registered as proprietors of land parcel No. KIAMBAA/KIHARA/T181 under the Limitation of Actions Act on the ground that the plaintiffs have jointly and severally been in open and peaceful occupation of the premises since March, 1966, that is to say a period of over 12 years preceding the presentation of this summons.

2. That the Plaintiff’s occupation of the land parcel has been continuous as of right and without force and with the Respondents abandonment, and their right of claim to the land is by law extinguished.

3. That the plaintiffs are entitled to costs of this summons.

The Originating Summons is supported by the supporting affidavit of Winston Waruimba Njuguna who averred that the 1st plaintiff is his father. Further that in February 1966, the 1st Plaintiff was sold parcel no. Kiambaa/Kihara/T181 by the 1st Defendant and immediately took possession of the same. He also alleged that the defendants are a husband and wife. He further alleged that their family had continuously lived on the parcel of land since the aforesaid occupation, peacefully openly and as of right with full knowledge of the Defendants and without interruption from anybody. It was his further allegation that he built his residential house on the said parcel with authority of the 1st Plaintiff in the year 1977and has been working on the land since that date.

He further contended that the 1st Defendant without the Plaintiff’s knowledge did in 1979 transfer the parcel of land to his wife, the 2nd Defendant as per annexture marked WWN1. It was his contention that despite the change of proprietorship in the official records, there has not been any interruption of my occupation of the premises by the 2nd Defendant regardless of her awareness, though over 25 years have since lapsed.

Therefore in light of the foregoing, the Defendants claim on the parcel of land is extinguished and the plots have the right to claim registration thereof by adverse possession. He urged the Court to allow the Originating Summons.

The Defendants though served with the Originating Summons and summons to enter appearance did not file any response. A request for judgment was filed on 2nd October, 2009 and interlocutory judgment was entered on 12th October, 2009.

The matter proceeded for formal proof on 4th February, 2016 wherein PW1, Winston Waruimba Njuguna gave evidence. He relied on his affidavit that was sworn on 15th June, 2006 and stated that the land in issue is Kiambaa/Kihara/T181 which land is registered in the name of Margaret Gachiku Matindi. He alleged that the land was registered in the name of Margaret Gachiku in the year 1979 and that initially the land was in the name of Evans Matindi who was registered in the year 1959. Evans Matindi is the husband to Margaret Gachiku and that Evans sold the parcel of land to the plaintiff’s father in 1966. He further testified that he took possession of the parcel of land in 1977 and that nobody has disturbed his occupation on possession since then.

He urged the court to order that the said land be registered in his name as he had acquired title to it by virtue of adverse possession. He produced an abstract of title in the name of the 2nd Defendant as Exhibit No. 1. The plaintiff further filed written submissions through the Law Firm of L. Maina & Co. advocates. The Plaintiff relied on Sections7, 17and 38of the Limitation of Actions Act.

He also relied on the decided case of Muchunu Mumbura vs Peter Kamau Chege HCCC No. 1654 of 1994.

Section 7 of the Limitation of Actions Act provides that:-

“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 is first accrued to some person through whom he claims to that person”

Further Section 38 of the said Act provides that:-

“where a person claims to have become entitled to adverse possession to land registered under any of the Acts cited in Section 37 of this Act, on 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 that is registered as proprietor of the land.”

From the abstract of title produced in court the land in question is registered under the Registered Land Act Cap 300 Laws of Kenya and it therefore falls under the Acts referred to in Section 37 of Cap 22 Laws of Kenya.

The plaintiffs herein have brought an action to claim land by virtue of adverse possession. The principles to be considered by the court when determining a claim for adverse possessions have been settled in various decided cases. In the case of Kimani Ruachane Vs Swift Rutherford & Co (1980) KLR 10,the court held that:-

“In a claim for adverse possession, the plaintiff has to prove

i. Continuous use of the land for 12 years without secrecy, force or evasion

ii. Knowledge of the owner’s of the occupation.

iii. Continuous possession without any break or interruption for 12 years.

The plaintiff herein has alleged that his father Njuguna Mangara now deceased purchased the parcel of land Kiambaa/Kihara/T181 from the 1st Defendant in the year 1966. He also alleged that his family has been in continuous occupation of the parcel of land from the time of purchase to date. It was his testimony that he built his residential house on the suit land from the year 1977 and has lived on the land since then. He also testified that in 1979, the 1st Defendant transferred the suit land to his wife Margaret Gaciku Matindi without the authority of the Plaintiffs.

The Court has indeed seen the abstract of titles and it is correct that the suit land was registered in the name of Margaret Gaciku on 5th June 1979. The Defendants have not filed any defence to controvert the Plaintiff’s allegation. It is also not in doubt that Njuguna Maina (1st Plaintiff now deceased) did place a caution on the suit land on 19th July, 1982 claiming purchaser’s interest. If the plaintiffs have been living on the suit land since 1966 and later 2nd Plaintiff built house on it in 1977 without any interruption from the Defendants and without secrecy on evasion, then they qualify to be registered as the proprietors of the suit property by virtue of adverse possession as provided by Section 38 of the Limitation of Actions Act.

The 2nd plaintiff has alleged that he has been in continuous occupation of the suit property without any interruption. If that is the case, then the Defendants rights over the suit property has been extinguished by virtue of the long period that the plaintiffs have occupied and utilized the suit property.

Having now carefully considered the available evidence, the Court finds that the Plaintiff’s evidence is not controverted. The 2nd Plaintiff has therefore been able to prove his case on a balance of probabilities. For the above reasons, the Court finds that Plaintiff’s claim as stated in the Originating Summons dated 14th June, 2006 is merited. The Court consequently enters Judgment for the Plaintiffs against the Defendants as prayed in the Originating Summons in terms of prayers No. 1, 2 and 3.

Judgment entered accordingly.

Dated, signed and delivered at Nairobi this 27th day of January 2017.

L.GACHERU

JUDGE

In the presence of

Mr Kanuku holding brief for Maina Irungu for the Plaintiff

None attendance for the Defendant

Hilda : Court Clerk

Court:

Judgement read in open Court in the presence of the above stated advocate since it was a formal proof.

L.GACHERU

JUDGE