[2024] KEELC 13703 (KLR)

Nzioka & 2 others v Mutuku (Enviromental and Land Originating Summons E003 of 2021) [2024] KEELC 13703 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13703 (KLR)

Republic of Kenya

In the Environment and Land Court at Makueni

Enviromental and Land Originating Summons E003 of 2021

TW Murigi, J

December 11, 2024

Between

Saulo Nzioka

1st Applicant

Kaloki Nzioka

2nd Applicant

Ndunga Ndonye

3rd Applicant

and

Ileve Mutuku

Respondent

Judgment

1. The Applicants commenced this suit by way of an Originating Summons dated 21st May 2021 seeking the following orders:-1. That this Honourable Court be pleased to declare that the Applicants are the legal owners entitled by virtue of adverse possession of parcel of land title No. Okia/Mukuyuni/1216. 2.Costs of this application be provided for.

2. The Originating summons is supported by the affidavit of Ndunga Ndonye sworn on his own behalf and on behalf of the 1st and 2nd Applicants. The deponent averred that they inherited the suit property for their late father Nzioka Mulili. He further averred that the suit property was erroneously registered in the name of the Respondent. He further averred that they have lived on the suit property for a period spanning over 90 years and have made developments thereon. He further stated that the Respondent is not willing to transfer the suit property to them. He urged the court to allow the Originating Summons as prayed.

3. The Respondent filed a Notice of Appointment of Advocate through the firm of Manthi Masika & Co. Advocates but failed to file a response to the Originating Summons.

4. Though duly served with a hearing Notice, the Respondent did not attend the hearing. The matter proceeded for hearing on 4th June 2024.

The Applicants Case 5. PW1 Mary Kimimi Masilia testified that she is the legal representative of the estate of Saulo Nzioka (the 1st Applicant herein). She adopted her witness statement filed in court on 08/06/2021 as her evidence in chief. She also produced the list of documents dated 08/06/2021 as PEX 1-3 in support of their case.

6. It is the Applicants case that they have been in occupation of the suit property for many years including the period when the land adjudication exercise was carried out. PW1 testified that after she got married in the 1960s, they established their matrimonial home in the suit property where she has been cultivating to date. She further testified that she found her parents in law and her elder brother Ndunga Nzioka who was by then married residing on the suit property. It was her testimony that they entered the suit property without the consent of the Respondent and have been residing peacefully thereon. In conclusion, she urged the court to grant the orders sought in the Originating Summons

7. PW2 Kaloki Nzioki adopted his witness statement filed in court on 08/06/2021 as his evidence in chief. He informed the court that the late Saulo Nzioka was his brother. He echoed the evidence of PW1.

8. PW3 Patrick Ndungu Ndonye adopted his witness statement filed in court on 08/06/2021. He testified that the Saulo Nzioka deceased was his uncle. He echoed the evidence of PW1.

9. After the close of the hearing, the Applicants filed written submissions in support of their case.

The Applicants Submissions 10. The Applicants filed their submissions dated 2nd July 2024.

11. On their behalf, Counsel submitted that the Applicants occupied the suit property openly and without the consent of the Respondent. Counsel further submitted that the Applicants established their homes in the suit property before and after the land Adjudication exercise conducted in the 1960s. Counsel further submitted that the Applicants possession of the suit property has not been interrupted even after the Respondent was issued with a title in the year 2007. Concluding his submissions, Counsel urged the court to grant the orders sought in the Originating Summons.

Analysis And Determination 12. Having considered the pleadings, the evidence on record and the submissions by the Applicant, the only issue that arises for determination is whether the Applicants are entitled to the suit property by way of adverse possession

13. The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act which stipulates that: -“An action may not be brought by any person to recover land after the end of 12 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.”

14. Further Section 13 provides that: -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 under Section 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.

15. Section 38 gives guidelines on the procedure to be followed by a person claiming adverse possession.

16. The law on adverse possession is well settled.

17. The ingredients of the doctrine of adverse possession were discussed in the case of Wambugu Vs Njuguna (1983) KLR 173 where the Court of Appeal held that: -“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.”

18. The ingredients were recently discussed by the Court of Appeal in the case of Mtana Lewa Vs Kahindi Ngala Mwangandi (2005) eKLR where it was held that: -“Adverse possession is essentially a situation where a person takes possession of land, 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 of 12 years. The process springs into action essentially by default or inaction by the owner. The essential perquisites being that the possession of the adverse possessor is neither by force or stealth or under 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.”

19. It is well settled that a party claiming adverse possession ought to prove that his possession was peaceful, open and continuous. The possession should not have been through force, not in secrecy and without the authority or permission of the owner.

20. For the Plaintiffs to be entitled to the suit property by way of adverse possession, they must demonstrate that they have been in continuous, uninterrupted occupation for a period of not less than 12 years.

21. In Mombasa Teachers Co-operative Savings and Credit Society Limited Vs Robert Muhambi Katana & 15 Others [2018] eKLR the Court of Appeal stated that: -“Likewise, it is settled that a person seeking to acquire title to land by adverse possession must prove non permissive or non-consensual, actual, open, notorious, exclusive and adverse use/occupation of the land in question for an interrupted period of 12 years as espoused in the latin maxim nec vi nec clam nec precario.”

22. The Applicants produced an abstract of title (PEX-1) and a certificate of official search (PEX-2) to show that the Respondent is the registered owner of the suit property. It is the Applicants case that they have been in peaceful, continuous, open and uninterrupted occupation of the suit property for a period spanning over 90 years.

23. The Applicants maintain that they were in occupation of the suit property during the land adjudication exercise conducted in the 1960s. The Applicants produced photographs (PEX-3) which clearly show that they have constructed permanent homes on the suit property and that they engage in farming activities.

24. As to the nature of occupation or possession, PW1 testified that as at the time of her marriage, she found her parents in law and her elder brother in law residing on the suit property. She further contended that they were in occupation of the suit property during the land adjudication process.

25. The Court of Appeal in the case of Titus Kigoro Munyi Vs Peter Mburu Kimani (2015) eKLR held that the limitation period for purposes of adverse possessions starts running after the registration of the land in the name of the Respondent. In the present case, the time can be computed from 27th July 2007 when the Respondent was issued with a title for the suit property. No evidence was adduced to show that their possession was permissible or that it had been interrupted. The Applicants evidence was not challenged at the trial since the Respondent did not attend the hearing to controvert their evidence. In the circumstances, this court is inclined to accept the Applicants evidence on their claim for adverse possession.

26. From the foregoing, I find that the Applicants have proved that they acquired the suit property by way of adverse possession. .

27. Accordingly, judgment is hereby entered for the Applicants against the Respondent as prayed. The Applicants are awarded costs of the suit.

HON. T. MURIGIJUDGEJUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 11 th DAY OF DECEMBER, 2024. In the presence of: -M Mutuku for the ApplicantsCourt assistant Alfred