[2023] KEELC 16179 (KLR)

Nyakora v Wambura & 3 others (Environment & Land Case E006 of 2021) [2023] KEELC 16179 (KLR) (9 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16179 (KLR)

Republic of Kenya

In the Environment and Land Court at Siaya

Environment & Land Case E006 of 2021

AY Koross, J

March 9, 2023

Between

George Were Nyakora

Plaintiff

and

Josephine Achieng Wambura

1st Defendant

Samson Omondi Wambura

2nd Defendant

Nicholus Otieno Wambura

3rd Defendant

George Onyango Wambura

4th Defendant

Judgment

1. By an originating summons dated 20/12/2021, the plaintiff instituted a suit against the defendants who are the joint registered proprietors of North Sakwa/Maranda/3570 (‘suit property’). The 1st defendant is a mother to the 2nd to 4th defendants. The 4th defendant died on 26/7/2022 which was in the course of these proceedings.

2. The plaintiff sought to be deemed an adverse possessor of 6 acres out the entire suit property which measured 15. 18 ha. He sought the following reliefs:a.That he be declared to have acquired prescriptive rights over a portion measuring 6 acres out of the suit property by way of adverse possession;b.That the defendants do sign transfer and consent documents in his favour failure to which, the deputy registrar of the court be mandated to do so;c.A permanent injunction be issued against the defendants restraining them, their relatives, workers or agents from interfering with the 6 acres of the suit property that was occupied by him; andd.Costs of the suit be borne by the defendants.

3. The originating summons was accompanied by the plaintiff’s supporting affidavit dated 20/12/2021, witness statements and several documents which he produced in support of his case. A further list of witnesses was subsequently filed.

4. In defence, by the firm of Odongo Awino & Co. advocates, the defendants filed separate replying affidavits all dated 28/02/2022. They also filed witness statements.

The plaintiff’s evidence 5. The plaintiff testified as PW1. His evidence was contained in his supporting affidavit, adopted witness statement dated 20/12/2022 and documents produced as itemized in his list of documents and oral testimony.

6. In brief, it was his testimony he purchased 6 acres of North Sakwa/ Maranda/1780 from the 1st defendant who was the widow of Paul Wambura Agunda (‘Paul’) with the understanding she would transfer 6 acres to him once she had completed probate proceedings on Paul’s estate. The purchase was done in two phases; an initial agreement of 4 acres was purchased at ksh. 92,000/= and an addendum agreement of 2 acres at ksh. 50,000/=. He respectively completed payments on diverse dates of 5/5/2004 and 23/3/2009.

7. He entered the suit properties after executing the agreements and he had been in open, peaceful, free and uninterrupted possession of the 6 acres out of the suit property which emanated from North Sakwa/ Maranda/1780 for more than 12 years. He contended the 1st defendant had promised to transfer the 6 acres to him after succeeding Paul’s estate and even cajoled him to withdraw a caution but all these came to a nought.

8. On cross examination, he testified the 1st agreement was in writing and witnessed and he obtained permission to enter the suit property but the addendum was not executed because it was a continuation of the 1st agreement. He had utilised the 6 acres to date.

9. On re-examination, he affirmed the addendum agreement was collapsed into the 1st agreement and the entire 6 acres was hedged by trees.

10. Alfred Owino Osuke testified as PW2. He adopted his witness statement dated 16/11/2022 as his evidence in chief. He corroborated PW1’s testimony. He testified he was a witness to the 1st agreement.

11. On cross examination, he testified he did not witness the 1st agreement but he was present during its negotiations and execution. PW1’s homestead was on 4 acres while the 2 acres had trees on it. The entire 6 acres was fenced off by a wooden fence. He signed the agreement as a witness. He was notified of the addendum agreement.

The defendants’ evidence 12. The 1st to 4th defendants’ evidence was contained in their replying affidavits and witness statements all dated 16/03/2022 together with their oral testimony.

13. The 1st defendant testified as DW1. She testified she indeed sold 4 acres to the plaintiff at an agreed purchase price of Kshs. 160,000/=. The agreement was dated 22/02/2003 and she permitted him to enter the suit property. On 23/2/2017, the plaintiff entered the 2 acres with her permission on the understanding he would financially facilitate her to conduct probate proceedings on Paul’s Estate; the plaintiff defaulted. The plaintiff owed her a balance of the purchase price of ksh.18,000/= on the 1st agreement.

14. On cross examination, she testified the agreement was never in writing. The plaintiff only occupied 4 acres of the suit property. However, she did not have evidence to support that. The plaintiff entered the 2 acres in 2019 while on the 4 acres, he entered it in 2008 and she had never given him permission.

15. The 2nd and 3rd defendants respectively testified as DW2 and DW3. They all corroborated DW’1 evidence.

16. On cross examination and re-examination, DW2 testified that where the plaintiff lived was surrounded by trees. He used the 2 acres until 2015 before the plaintiff took possession in 2019. During the intervening period of 3 years, DW1 had utilised the 2 acres.

17. In exam in chief, DW3 testified the plaintiff’s father was his step brother. During cross examination, he testified during probate proceedings of Paul’s estate, the plaintiff was not disclosed as a beneficiary and the plaintiff’s land was surrounded by trees. In re-examination, he testified the 4 acres was surrounded by trees and not the 2 acres.

Plaintiff’s written submissions 18. The Plaintiff’s Counsel, Wakla & Company advocates filed their submissions dated 19/12/2022. Counsel submitted the 4 acres of land was uncontested and in accordance with the provisions of Order 13 Rule 2 of the Civil Procedure Rules, the court should award it to the plaintiff; the crux of the dispute was on the 2 acres. Counsel placed reliance on the persuasive decision of Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others [2021] eKLR where the court stated: -‘17. The scope of the rule is that in a case where admission of fact has been made by either of the parties in pleadings whether orally or in writing, or otherwise, the judgment to the extent of the admission can be granted on the application or as the court may think just.’

19. Counsel contended the plaintiff had proved adverse possession because he had entered the two acres on 12/04/2004 and had planted trees around the 6 acres. Counsel asserted that from pictorial evidence, the trees were mature. Further, counsel submitted the plaintiff occupied the 6 acres openly and held title adverse to the registered owner. Counsel quoted the definition of adverse possession as outlined in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR as: -‘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 nor 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.’

Defendant’s written submissions 20. Mr. Odongo, counsel for the defendants, filed written submissions dated 12/01/2023. Counsel submitted the plaintiff’s stay on the suit property was with permission of the 1st defendant because of an agreement of sale. Further, counsel asserted the addendum agreement was non-existent.

21. In addition, it was Mr Odongo’s submission that the plaintiff had not demonstrated he had been using the 2 acres for 12 years rather, he started utilising the 2 acres in 2019. Counsel asserted in the absence of a further affidavit by the plaintiff, the defendants’ replying affidavits stood uncontroverted. Counsel asserted the plaintiff had not discharged the burden of proof on his claim. To this end, counsel relied on the decision of Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the administrator of the estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) [2022] eKLR which cited with approval Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another [2015] eLR where the court observed:-‘The identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. This was so stated by this Court in the case of Githu vs. Ndele [1984] KLR 776. ’

Analysis and determination 22. I have considered the evidence by the parties including produced documents as well as submissions by counsels. The provisions of law and judicial precedents have been well articulated in counsels’ submissions and I will be guided by them.

23. Before I deal with the issue for determination, I must address certain preliminary issues which emerged from the parties’ pleadings and proceedings. The 1st to 3rd defendants admitted the plaintiff was entitled to 4 acres of land. In concurrence with the plaintiff’s counsel, and with the power donated to this court by order 13 rule 2 of the Civil Procedure Rules, I enter judgment for the plaintiff on the 4 acres.

24. Notwithstanding the 4th defendant’s death certificate was not tendered before this court, it is not in doubt he died in the course of these proceedings. From the record, the suit against the 4th defendant had not abated and he was not substituted with a legal representative of his estate as a party in accordance with the provisions of order 24 rule 4 of the Civil Procedure Rules. I hereby strike out the suit against the 4th defendant.

25. By the provisions of Order 2 Rule 2 of the Civil Procedure Rules, failure by the plaintiff to file a further affidavit did not render the defendants’ replying affidavits uncontroverted but rather, there was joinder of issues which operated as a denial of all allegations contained in the replying affidavits. See Monica Muthoni Mwaniki v Jeremiah Kuya Mutunki [2015] eKLR.

26. I shall now proceed to consider the merits or otherwise of the plaintiff’s claim to the suit property and in doing so, I shall address the single of whether the plaintiff’s claim of 2 acres had met the threshold of adverse possession.

27. That being said, the doctrine of adverse possession is underpinned in various statutes; namely, Sections 7, 13 and 38 of the Limitation of Actions Act and the Section 28 (h) of the Land Registration Act.

28. Section 7 of the Limitation of Actions ACT intimates that a proprietor cannot, after 12 years, recover land that had been acquired by adverse possession. Section 13(1) of the said ACT states that an adverse possessor must be in possession of land in order for a right of adverse possession to arise. Section 13(1) of the same ACT states that if adverse possession is interrupted, the period of adverse possession starts running afresh when the adverse possessor again takes possession of the land.

29. Sections 38 (1) and (2) of the Limitation of Actions ACT states that “where a person claims to have become entitled by adverse possession to land, 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.”

30. Section 28 (h) of the Land Registration ACT recognises that all registered land is subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register; rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions or by prescription.

31. The decisions cited by both counsels laid down the principles of adverse possession. Prove of such elements such as actual, open, notorious and exclusive occupation are not sufficient enough to make the provisions of the Limitation of Actions Act become operative in respect of adverse possession; the plaintiff needed to prove the 1st to 3rd defendants had either been dispossessed or had discontinued their possession of it during the statutory period of 12 years.

32. In dealing with a claim of adverse possession, the primary function of the court is to draw legal inferences from proved facts and such inferences are clearly matters of law. In the case of Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, the Court of Appeal set down the issues a claimant must address when seeking to be declared an adverse possessor;‘A person who claims adverse possession must inter alia show:(a)on what date he came into possession.(b)what was the nature of his possession?(c)whether the fact of his possession was known to the other party.(d)for how long his possession has continued and(e)that the possession was open and undisturbed for the requisite 12 years.’

33. Although both counsels made heavy weather on the 1st agreement of sale and addendum agreement, the agreements were illegal. I say so because at the time of execution of the 1st agreement or if at all the addendum existed, the estate of Paul had not been succeeded and the actions of the 1st defendant amounted to intermeddling with the estate of a deceased person. See Section 45(1) of the Law of Succession ACT and the Court of Appeal decision of Standard Chartered Bank Kenya Ltd v Intercom Services Ltd & 4 others [2004] eKLR where the court cited with approval the case of Heptula vs Noormohamed [1984] KLR 580.

34. It suffices the plaintiff’s alleged entry was in itself wrongful but that is the essence of adverse possession; holding title adverse to the owner. These agreements albeit illegal, gives the court a glimpse of the circumstances of the plaintiff’s alleged entry.

35. The plaintiff contended that pursuant to an addendum agreement, he entered the two acres on 12/5/2004. It was his testimony he had planted trees around the 6 acres. His evidence was corroborated by PW2.

36. On the other hand, in their witness statements DW2 and DW3 denied the plaintiff’s occupation and possession of the two acres. During cross examination, DW2 contradicted his written statement and asserted the plaintiff had occupied the two acres from 2019 and the plaintiff’s portion of land was surrounded by trees. He (DW2) had utilised the two acres from 2003 to 2015. Between 2015 to 2019, the two acres were in possession of DW1.

37. In her witness statement, DW1 stated the plaintiff occupied the two acres with her permission from 3/2/2017 after they agreed he would financially facilitate her during probate proceedings on Paul’s estate; which he defaulted. During cross examination, she contradicted herself; in some instances, she asserted the plaintiff only lived on 4 acres and in others, she contended the plaintiff had in addition to the 4 acres, occupied the 2 acres from 2019.

38. All witnesses admitted the plaintiff’s land was hedged by trees but there were variations on whether it was on the 2 acres, 4 acres or entire 6 acres. The plaintiff and PW1 testified it was on 6 acres. PW1 testified the 2 acres had trees on it. DW1 testified the position occupied by the plaintiff had trees. DW3 testified only 4 acres were surrounded by trees while the 2 acres were distinct.

39. The plaintiff’s testimony was consistent of when he entered the two acres. While the defendants were inconsistent; they were unsure if the plaintiff occupied it or whether he entered it in 2017 or 2019. Additionally, although DW1 testified the plaintiff reneged to finance her during the probate process, from the greencard of North Sakwa/ Maranda/1780, probate proceedings on Paul’s estate in Bondo PM Succession Cause No.14 of 2018 was conducted on or before 14/12/2018.

40. DW1’s testimony left a lot to be desired. If the plaintiff was to presumably enter the 2 acres during probate process which he allegedly defaulted, why would she allow him to enter the 2 acres in 2019 after completing probate proceedings? DW1 conceded the existence of the 1st unlawful agreement. This agreement showed the purchase price was ksh.92,000/= why would she testify the purchase price was Ksh 160,000/- yet the written agreement showed otherwise?

41. It is my finding the plaintiff was consistent in his evidence while that of the 1st, 2nd and 3rd defendants were inconsistent, full of falsehoods and half-truths.

42. The photographs which were produced by the plaintiff showed mature trees which obviously were planted a long time ago. I am satisfied the plaintiff without permission occupied these two acres for a long period of time which commenced on 12/5/2004; a period of 18 years. His homestead could be depicted from produced photos and a burial stone could be seen.

43. The 1st to 3rd defendants had been dispossessed or had discontinued their possession of the two acres. There was no evidence to show the plaintiff’s occupation was by force or action was taken against him by the 1st, 2nd and 3rd defendants for such occupation. His occupation was open, continuous and he held the 2 acres adverse to the registered owners.

44. For the reasons stated above, it is my ultimate finding the plaintiff proved on a balance of probabilities his claim of adverse possession. The plaintiff and 1st to 3rd defendants are close family members, in view of the very special circumstances of this case, each party shall bear their respective costs of this suit.

45. Ultimately, I make the following disposal orders;a.A declaration that the title for land parcel no. North Sakwa/Maranda/3570 measuring 6 acres in the name of Josephine Achieng Wambura, Samson Omondi Wambura, Nicholus Otieno Wambura and George Onyango Wambura have been extinguished by the plaintiff’s adverse possession thereof for a period of more than 12 years in terms of the Limitations of Actions Act.b.At the plaintiff’s cost, it is hereby ordered that within ninety (90) days from the date hereof, a subdivision and transfer be conducted by the County Land Registrar, Siaya or such other officer as shall be delegated by the County Land Registrar, Siaya within Bondo sub county to survey, ascertain and excise a portion measuring 6 acres within land parcel no. North Sakwa/Maranda/3570 for purposes of registration in the plaintiff’s favour.c.In default of compliance with order (b) above, the deputy registrar or authorized officer do execute all the necessary documents to confer a portion measuring 6 acres within land parcel no. North Sakwa/Maranda/3570 to the plaintiff.d.A permanent injunction be and is hereby issued restraining the defendants, their servants, agents and workers from entering or occupying, constructing, destroying, damaging or dealing whatsoever on the 6 acres within land parcel no. North Sakwa/Maranda/3570. e.Each party shall bear their own costs of the suit.

46. It is so ordered.

DELIVERED AND DATED AT SIAYA THIS 9THDAY OF MARCH 2023. HON. A. Y. KOROSSJUDGEJudgment delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:In the Presence ofMr. Otieno for the plaintiffMr. Odongo for the defendants