[2022] KEELC 4790 (KLR)

Njuguna & another v Muthumbi (Environment and Land Case Civil Suit 775 of 2017) [2022] KEELC 4790 (KLR) (15 September 2022) (Judgment)

Neutral citation: [2022] KEELC 4790 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Case Civil Suit 775 of 2017

JG Kemei, J

September 15, 2022

Between

Veronicah Wairimu Njuguna

1st Plaintiff

Margaret Wanjiku Njau

2nd Plaintiff

and

Paul Gatundu Muthumbi

Defendant

Judgment

1. The plaintiffs took out originating summons against the defendant on the 4/10/2017 for the determination of the following questions;a.Spent.b.Has the plaintiff acquired title to the parcel of land known as Limuru/kamirithu/447 (suit land) by reason of adverse possession since 1989?c.Was the defendants title to the suit land extinguished upon expiry of the period of 12 years?d.Does the defendant hold title of the suit land in trust for the plaintiffs?e.Is the plaintiff entitled to be registered as the proprietor of the suit land?f.Who should execute the transfer of the suit land to effectuate the registration of the plaintiffs as the proprietor thereof?

2. The summons are supported by the affidavit of the 1st plaintiff sworn on the 20/9/2017 where she deponed that; the suit land is registered in the name of the defendant it having been owned by their late mother Kabura Kahara who became registered as owner of the suit land in 1958 until 1977 upon her demise. That she lived on the suit land in 1960 until her demise.

3. The plaintiff avers that she and her co-plaintiff have developed, tilled the land and enjoyed quiet possession since 1989 todate. That they have been in continuous open exclusive undisturbed occupation of the land without the permission of the registered owner since 1989 to date.

4. That later they discovered that the land was sold by one Raymond Kahara Kamau to the defendant. That the defendant has never taken possession of the suit land.

5. The suit has been resisted by the defendant vide the replying affidavit filed on the October 19, 2017 where he deponed that the plaintiffs have not been in occupation of the suit land and that to the contrary he has been in possession and that the plaintiffs only trespassed onto the land in 2017 and attempted to put up structurers thereon when he reported the invasion to the police at Tigoni. That he purchased the land in 1989 and has been in possession since then and that the claim is untenable.

6. In her further affidavit sworn on the 1/11/2017 in reply to the replying affidavit of the defendant the 1st plaintiff reiterated her earlier averments and refuted the claim that they invaded the land in 2017. She maintained that since time immemorial they have been tilling the land and that the defendant having made allegations of forcible detainer of land, the only inference is that the plaintiffs were in possession of the land and explains why the defendant wanted them to be removed from the said land.

7. She added that the land was cautioned by her deceased sister in 1989. That the complaint of the defendant prompted them to file the instant suit to protect their accrued rights on the land.

8. At the hearing Veronica Wairimu Njuguna testified as PW1 on her own behalf and that of the 2nd plaintiff. She adopted her witness statement filed on the 1/11/2017 and produced documents marked as PEX 1-8 in support of her case.

9. In cross she stated that she lives at Ndeiya Kiambu where she was married to the late George Njuguna Kamaru. She informed the court that she does not live on the suit land and neither does she have a house on the suit land however she carries out faming on the land. She stated that she is aware of the previous suit between her sister Wanjiru Mbugua and the defendant and insisted that she and her co-plaintiff did not give consent to the said late sister Wanjiru to file the suit on their behalf. She also stated that she was not involved in the succession case of her Mother the late Kabura Kihara. That the defendant purchased the suit land from Raymond Kahara Kamau, who is her nephew, being the son of her elder step brother. She narrated to the court that she was summoned by the Police at Tigoni and asked about the original title of the land and that is what prompted her to institute the instant suit.

10. DW1 – the defendant testified and informed the court that he relies on his witness statement dated the October 13, 2017 as his evidence in chief. He produced the list of documents marked DEX No 1-9 in support of his defence. He stated that he acquired the land from Raymond Kahara in 1989 and that the plaintiffs entered the land in 2017 and tried to subdivide it. That he does not know who was farming on the land before he acquired it in 1989. That he filed a complaint to the police complaining about the invasion of the land by the plaintiffs in 2017. That the plaintiffs were not in possession before the year 2017. He admitted that some persons were buried on the land before he acquired it in 1989.

11. That before he had been sued Wanjiru Mbugua, one of the sisters of the plaintiffs in HCCC No 1675 of 1989 when Wanjiru entered the suit land and attempted to cut down trees that had been planted by Raymond. He informed the court that this suit was not concluded.

12. Further that the caution lodged on the land was by Wanjiru Mbugua in 1989 which caution still subsists on the land.

13. DW2 – Raymond Kahara Kamau took the stand as DW2 and stated that the plaintiffs are his aunties, being the step sisters of his father, the late Eliud Kamau Kahara. That he inherited the land that was held by Kabura Kahara because the latter did not have sons. That the consent of the plaintiffs was not necessary for him to petition for letters of grant of administration in the estate of the late Kabura Kahara. That he presented the confirmation of grant to the Land Registrar and was issued with title in 1988 whereupon he sold the land to the defendant in 1989. He confirmed that Kabura, and one of her daughters are buried on the suit land. That Kabura died in 1977. He stated that the defendant took possession of the land in 1989. That in 2017 he saw the 1st plaintiff on the land in the company of other people attempting to survey/subdivide the suit land as he lives adjacent to the land. That this prompted the defendant to file a complaint at Tigoni Police Station where he reported the invasion of the land by the plaintiffs.

14. He informed the court that he was aware of the injunctive orders issued by the court in HCCC No 1675 of 1989 against the plaintiffs barring Wanjiku Mbugua and by extension the plaintiffs from entering and interfering with the suit land

15. Parties filed their written submissions which I have read and considered.

16. With respect to tHe preliminary objection dated The 9/12/2019 the plaintiff submitted that the suit is not resjudicata on the grounds that the previous suit being HCCC No 1675 of 1989 was never heard to its conclusion. Further that the claim of adverse possession has never been heard and determined

17. The plaintiffs further submitted that DW2 admitted that he got himself registered as owner of the title without surrendering the original title which is still in the custody of the plaintiffs. That he also admitted that he never took possession of the suit land even after the land was registered in his name. That he sold the land to the defendant without having a good title to the suit land and without removing the plaintiffs from the land. Instead in 2017 the defendant tried to use the police to have the plaintiffs and two other families charged with an offence of forcible detainer as per the summons dated the 28/4/2017. They submitted that the plaintiffs have been in possession since then and that their occupation has been peaceful. That through the said summons the defendant was admitting the existence of the plaintiffs occupation on the suit land.

18. Relying on the case of Richard Kiptalam Bongo v Republic Criminal Appeal No 430 of 2013 the plaintiffs maintained that an offence of forcible detainer can only be proved with respect to the following principles; a person has actual possession of the land; the person has no right over the land; the act of possession is against the interest of the legal owner or the person legally entitled to the land.

19. On the issue of whether the suit is resjudicata, the defendant submitted in the positive in view of the existence of case No HCCC No 1675 of 1989 in which case the defendant, then, Wanjiru Mbugua was restrained by an order of the court from interfering from the defendant’s possession and use of the suit land. In the said case that a consent was produced by the defendant detailing how the plaintiffs who are sisters to the said Wanjiru Mbugua consented to being represented by the said Wanjiru Mbugua in the HCCC No 1675 of 1989. That the plaintiffs are therefore estopped from purporting to proceed with their current case as it deals with the same parties and the same subject matter, hence falls within the doctrine of resjudicata.

20. Further the defendant argued that the estate of Kabura Kahara was fully succeeded and Raymond Kahara was issued with the confirmation of grant and the suit land was transmitted to him in accordance with the said confirmed grant. That the said Raymond was therefore entitled to the land, the letters of grant of administration having not been set aside vacated and or appealed. That Wanjiru Mbugua on her own behalf and that of the plaintiffs tried unsuccessfully to set aside the grant of letters of administration but the High Court declined.

21. In maintaining that the plaintiffs have not succeeded in leading evidence in support of adverse possession, the defendant relied and cited the following cases; Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] eKLR; Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR; Alfred Welimo v Mulaa Sumba Barasa (CA 186 OF 2011); Nthambi Mangea & Anor v Veronicah Mulundi Mulwa [2021] eKLR.

22. The key issue for determination in my view is whether the plaintiff has proved title by way of adverse possession.

23. Before delving into the crux of the determination, I would like to determine a matter raised by way of preliminary objection by the defendant vide its preliminary objection dated the 9/9/2019. In the main the objection is grounded on the position that the suit is resjudicata in view of the HCCC No 1675 of 1989. This objection was canvassed by the parties in their written submissions which I have read and considered.

24. Section 7 of the Civil Procedure Act states as follows;“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

25. In this case DW1 and DW2 led evidence of the existence of HCCC No 1675 of 1989 between the defendant and one Wanjiru Mbugua, the deceased sister of the plaintiffs. In addition the defendant attempted to show the nexus between this case and the plaintiffs by presenting a beneficiaries consent entered into by Lucy Mukima Kibe, Margaret Wanjiku Njau, Veronica Wairimu Njuguna and Teresia Kabura Marunge on one hand and Wanjiru Mbugua on the other. It is not in dispute that these persons were sisters being the children of Kabura Kahara. In this consent the sisters were giving consent to Wanjiru to represent them in a succession case in the estate of their late mother. There is no evidence adduced by the defendant that the consent referred to the subject case HCCC No 1675 of 1989. I say so because the consent was executed on the 17/6/1983 before the High Court case was filed. The court is unable to find that the HCCC No 1675 of 1989 applied to the plaintiffs. It is not disclosed whether the plaintiffs were parties in the suit.

26. In addition, the defendant has not placed any evidence before this Court to show that HCCC No 1675 of 1989 was heard and determined. I have been shown the ruling delivered by Hon Justice A M Cooker (as he then was) on the 11/7/1989 in which the court restrained Ms Wanjiru Mbugua from interfering with the land pending the hearing and determination of the suit. No evidence was led to show that the case was ever heard and what the outcome was. I must note that the pleadings in HCCC No 1675 of 1989 were not placed before me to guide me on what the nature of the case was. It would be presumptuous for the court to make a finding that the matter is issue in this suit was also in issue in HCCC No 1675 of 1989.

27. A preliminary objection must consist of a point of law which arises from pleadings either express or impliedly. This was the dictum in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 where the court pronounced itself as follows;“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”At page 701 Sir Charles Newbold, P added:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion...”

28. Taking the above definition and applying to the preliminary objection at hand, it becomes clear that the preliminary objection called upon the court to inquire into evidence so as to arrive at a finding as to whether or not the suit is resjudicata. I have held before in a number of cases that an issue of resjudicata is best raised as a notice of motion to allow evidence be placed before the court so as to determine whether the matter had been heard or not.

29. In the end the preliminary objection is not a pure point of law. The same is unmerited and is dismissed.

30. Has the plaintiff proved title by way of adverse possession?

31. It is not in dispute that the suit land became registered in the name of Kabura Kahara on the on the 28/8/1958. According to the death certificate on record the said Kabura died on the 26/1/1977. Thereafter her estate was succeeded and a certificate of grant was issued and confirmed to Raymond Kahara Kamau on the November 11, 1988 and a transmission of the suit land was registered on the 18/11/88. On the 25/1/89 the land was registered in the name of the defendant and title issued on even date. On the 8/3/89 and 20/2/89 respectively a restriction and a caution were lodged against the title prohibiting any disposal of the land, one by the District officer Limuru and the latter by Wanjiru Mbugua, the daughter of Kabura Kahara.

32. It is not in dispute that the plaintiffs were daughters of Kabura Kahara and that DW2 is a relative of the plaintiffs.

33. The law pertaining to adverse possession is now settled. Section 7 of the Limitations of Actions Act states 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 first accrued to some person through whom he claims, to that person.”Section 38(1) states;“(1)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.”

34. The combined effect of the sections above is to extinguish the title of the proprietor of the land in favour of the adverse possessor at the expiry of 12 years in adverse possession of the suit land.

35. In the case of Wambugu v Njuguna(1983) KLR 172, the Court of Appeal stated that in order to acquire land by virtue of the statute of limitation, the claimant must show that the owner has lost his right to the land upon being dispossessed or by the owner discontinuing possession by his volition. The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community, of the exercise of dominion over the land.

36. In the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR;“…The possession must be continuous, uninterrupted, unbroken, for the necessary statutory period. This element means that the possession by the adverse possessor must continue without significant interruption for a solid block of time at least as long as the period of limitation, being at the moment twelve years before the filing of suit. What is a significant interruption depends upon the nature of the land. Brief and ordinary absences, while the adverse possessor goes to town, is gone overnight, or is away working or on vacation, for instance, would surely not break any adverse possession. If the land, by its nature, is suitable and normally used for seasonable pursuits, then seasonal use may be continuous enough. The test is whether the adverse possessor used the land as a true owner would. But breaks caused by the owner’s intermittent possession, for a few days or weeks every now and then, are likely to defeat both exclusivity and continuity of possession.”

37. What is possession? This was defined in the case of Athman Bwana and Alim Bwanahave v Haji Abdulla Ibrahim and Husein Haji Abdulrehman, [1948] 15 E A C A 7 (Sir G Graham Paul, CJ) where the court stated interalia that 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 the statutory period. Time does not begin to run unless there is some person in adverse possession of the land. It does not run merely because the land is vacant. Adverse possession rests on de facto use and occupation by an entrant. The rule that his entry must be followed by possession and appropriation to his use is founded on the reason that a right of action cannot accrue unless there is somebody against whom it is enforceable. Possession is a matter of fact, depending on all the particular circumstances of the case, and the type of conduct which indicates possession varies with the type of land. That there must be actual possession (which requires some sufficient degree of physical occupation for the requisite period).

38. 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. In other words, the intruder must have some apparent title, the appearance or semblance of title but not the reality of it, for the expression “colour of title” in law means, that which is title in appearance but not in reality. He must have with him his own apparent right which affords him some semblance of title under which he claims to found his occupation of the land independently of anyone else’s power. If he has no semblance or shadow of right to be on the land, he cannot rely on adverse possession (see the cases cited in (1) above, especially the authority quoted by Gicheru, JA, inErnest Wesonga Kweyu v Kweyu Omuto CA Civ Appeal No 8 of 1990.

39. It is not sufficient that there should be an actual possession by the person claiming title by adverse possession; there must be a discontinuance of possession by the owner, or he must have been eliminated from the land, followed by clear actual possession by the incoming person. A case of unequivocal exclusive possession sufficient to deprive the owner of the soil must be made out on a balance of probability. It is incumbent on the part of the claimant satisfactorily to establish an exclusive possession by himself or through his predecessors in title against the owner or his predecessors in title for the past twelve or more years. It is not enough to show a mere going out of possession by the owner. There must also be exclusive possession for the statutory period by the person to be protected: See Hassanali Mamuji v Alibhai Ebrahimji Dar & Sons, [1935], 12 E A C A 11.

40. In this case the plaintiffs have urged the court that they have been occupying the suit land since 1989. That they have been carrying out farming activities on the land and did annex pictures of the said activities in support of their claim. PW1 stated that she lives in Ndeiya and not on the land. She admitted that she has not constructed any house on the said land. In the ruling earlier on alluded to, the court while barring the plaintiffs sister from entering and interfering with the suit land, observed that there was no evidence that Wanjiru Mbugua lived on the land nor has a house thereon. It is not clear from the plaintiffs evidence at what point they entered the land and started cultivating it. It is commonly acknowledged that the defendant filed a complaint in 2017 with the local Police Station at Tigoni whereupon the plaintiffs were summoned to the station. They have explained to the court that the complaint was regards to the alleged forcible detainer of the land by the plaintiffs. Be that be the case it then means that the defendant was in possession of the land until 2017 when the plaintiffs invaded the land for purposes of subdivision.

41. The court is not satisfied that the plaintiffs have proved that they have occupied the land for the statutory period of 12 years. They have not led any cogent evidence to show that they occupied the land from 1989 to 2017 when they are alleged to have invaded the land and filed this suit.

42. Was the occupation adverse? It is for the claimant to lead evidence to support adversity in the occupation of the land. There was no evidence to show that the registered owner of the land was disposed of the land and or handed over possession to the plaintiffs and stayed away from the land for the full period of 12 years.

43. It is the law that adverse possession is a question of both law and fact. Possession is of fact and the burden rests with the claimant to show that the fact of possession is pleaded and proved to the appropriate standard. The possession by the person seeking to prove title by adverse possession must be visible, open and notorious, giving reasonable notice to the owner and the community, of the exercise of dominion over the land. The idea of open and notorious possession entails possession that gives visible evidence to one on the surface of the possessed land. The purpose of this element is to afford the owner an opportunity for notice. See Gabriel Mbui v Mukindia Maranya [1993] eKLR.

44. To buttress the point further I shall rely on the decision in the case of Peter Njau Kairu v Stephen Ndung’u Njenga & Another CA 57of 1997, where the Court of Appeal stated the principle as follows:“In order that a registered owner of land may be deprived of his title to such land, in favour of a trespasser (who claims by adverse possession), stringent but straightforward proof of possession is necessary.”

45. The plaintiffs led evidence and submitted that the title of the late Kabura Kahara was fraudulently transferred to the defendant by one Raymond Kahara whilst the original title was in their possession. In a claim for adverse possession, the adverse possessor acknowledges the title of the paper owner because it is this title that the claimant has come to claim under section 38 of the Limitation of Actions Act. The claim is destroyed by any challenge to the said title. In other words, the claimant will be putting up a case before the court that though the paper owner has a valid title he is holding it in trust for him, the actual title having accrued to him by operation of law. In a number of decisions, courts held that fraud destroys a claim in adverse possession. See Forbes, JA, in Ahmed Abdulkarim and Another v Member of Lands and Mines and Another [1958] E A 436, at p 441; Kneller, J (as he then was), in Salim v Boyd and another [1971] E A 550}} at p 552; Chanan Singh, J, in Jandu v Kirpal and Another, [1975] EA 225.

46. The question of trust though pleaded for determination seems to have been abandoned mid-air. The plaintiffs did not lead evidence on the same.

47. Based on the evidence adduced at the hearing and on a balance of probabilities and going by the decision in Peter Njau Kairu (supra) I find that the plaintiffs have failed to proof their case.

48. Final orders and disposal;a.The suit fails and it is dismissed with costs to the defendant.

49. Orders accordingly.

DELIVERED, DATED AND SIGNED AT THIKA THIS 15TH DAY OF SEPTEMBER 2022 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Ms Kinuthia for 1st and 2nd plaintiffsKatee HB Mr. MakoriCourt Assistant – Phyllis Mwangi