[2023] KEELC 16271 (KLR)

Nzioka v Nzioka & another (Environment & Land Case 197 of 2015) [2023] KEELC 16271 (KLR) (8 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16271 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 197 of 2015

A Nyukuri, J

March 8, 2023

Between

Richard Musyimi Nzioka

Applicant

and

Wandia Nzioka

1st Respondent

Ngina Nzioka

2nd Respondent

Judgment

Introduction 1. By Originating Summons dated 25th August 2015, the Applicant sought the determination of the following issues;a.Whether the Applicant has acquired prescriptive rights over all that parcel of land known as IVETI/MUNG’ALA/1556 registered in the names of the Respondent herein.b.Whether the Respondents should provide costs of this application.

2. Subsequently, he sought the following orders;a.That the Applicant be and is hereby declared the owners by prescription of all that parcel of land known as IVETI/MUNG’ALA/1556 measuring approximately 100 feet by 75 feet Hectares and be issued with a title deed.b.That the Respondent do pay the costs of this application.

3. The summons was supported by the supporting affidavit sworn on 25th August 2015 by Richard Musyimi Nzioka. The Applicant deposed that the parcel of land known as IVETI/MUNG’ALA/1556 measuring 100 feet by 50 feet was sold to him on 11th November 1977 by the Respondent’s husband one Nzioka Kyalo at an agreed price of Kshs. 1,500/- which was paid in instalments and paid in full.

4. He further stated that on 1st July 1979, he purchased a parcel of land measuring 100 feet by 25 feet at an agreed price of Kshs. 1,050/-. Further that he took possession and planted a sisal boundary around the land.

5. He deposed that the Respondents husband died in January 1981 before subdividing the said property and that subsequently, the land was registered in the Respondent’s name, who refused to subdivide and transfer to the Applicant the purchased portion of 100 feet by 75 feet.

6. It was his assertion that in 1984, the Respondent’s son claimed the land back and undertook to refund the purchase price. That he remained in the land without the Respondent’s claim and in 2002 began putting up permanent houses on the suit property with the knowledge of the Respondents. According to him, he has been in open uninterrupted occupation of the suit property since 1984, for 31 years and had therefore acquired it by adverse possession.

7. Despite service of summons and hearing notices on the 1st Respondent, no response was filed. The Applicant informed court that the 2nd Respondent was deceased, and he did not wish to pursue his claim against her.

Plaintiff’s Evidence 8. PW1, Richard Musyimi Nzioka adopted his witness statement dated 10th April 2018 as his evidence in chief. He testified that on 11th November 1977 and 1st July 1979, he purchased land measuring 100 feet by 50 feet and 100 feet by 25 feet respectively from one Nzioka Kyalo at a total consideration of Kshs. 2,550/- which he paid in full. The land purchased was to be excised from parcel known as IVETI/MUNG’ALA/1556.

9. It was his testimony that upon purchase, he took possession of the suit property and proceeded to build residential houses on the said parcel. According to him, the vendor died in 1981 and that having requested the Respondents who were his widows, to transfer the purchased land to him, they declined.

10. He stated that he had been in occupation of the suit property for 40 years from 1977, and that he had stayed thereon peacefully and without interruptions.

11. He produced a certificate of official search as P-Exhibit 1, sale agreements and their English translations as P-Exhibits 2 and 3 respectively; payment acknowledgment in Kamba language and their English translations as P-Exhibits 4 and 5 respectively and a letter from the Assistant Chief dated 6th November 2008 as P-Exhibit 6.

12. PW2, Luka Kituku Mutuma adopted his witness statement dated 10th April 2018 as his evidence in chief. He testified that he was a witness to the sale agreement of 11th November 1977. According to him, he later learnt that the Applicant purchased a further piece of land measuring 100 feet by 25 feet from the same vendor and that he took possession of the purchased land by constructing residential houses on the said parcels, and is in occupation till today.

13. PW3, Fredrick Mwanzia Kyalo adopted his witness statement dated 10th April 2018. He testified that he was a nephew of the late Nzioka Kyalo, and that in September 1979, he witnessed the Applicant plant sisal to demarcate a portion of the parcel of land known as Iveti/Mung’ala/1556 measuring 100 feet by 75 feet. He stated further that his portion of land borders the Applicant’s land and that he is aware that the Applicant took possession of the suit property and proceeded to build residential houses on the land.

14. That marked the close of the Applicant’s case. As the 1st Respondent did not attend court despite service, her case was also marked as closed and parties granted 14 days to file submissions. On record are the Applicant’s submissions dated 20th January 2023.

Applicant’s Submissions 15. Counsel for the Applicant submitted that the burden to prove adverse possession rests with the Applicant, and that he must show that he was in actual, open, exclusive, peaceful and continuous possession of the disputed land for a period of over 12 years. Counsel relied on Section 38 of the Limitation of Actions Act to argue that he has properly approached this court.

16. In placing reliance on the case of Jacob Mwanto Wagora vs. Mary Waruga Wokabi & 3 Others [2018] eKLR, counsel argued that to prove adverse possession, a claimant must show that the trespasser has been in continuous and uninterrupted possession without consent of the owner of the land; the trespassers interest must be inconsistent with the interests of the true owner of the land; possession has to be open and notorious, to enable the owner be on notice that there is a trespasser on his land; possession must be actual to enable the owner have a cause of action and the possession has to be exclusive to avoid confusion on who is entitled to obtain title. Counsel contended that the Applicant had met all the above conditions.

17. Further reference was made to the case of Kamataka Board of Wakf vs. Government of India & Others [2004] 10 SCC 779, to buttress the submission that an adverse possessor must demonstrate that his possession is nec vi, nec clam, nec precario, that is not by force, nor stealth nor the licence of the owner. Counsel argued that the Respondents had failed to controvert the Applicant’s case despite service.

Analysis and Determination 18. I have carefully considered the pleadings, the evidence of the Applicant and his submissions. The single issue that arise for determination is whether the Applicant has demonstrated to have acquired the suit property by way of adverse possession.

19. The doctrine of adverse possession is anchored on the provisions of the Limitation of Actions Act Cap. 22 Laws of Kenya. Section 7 of the Limitation of Actions Act provides as follows;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 13 states as follows;(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 Sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain 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.Section 16 provides as follows;For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person is taken to claim as if there had been no interval of time between the death of the deceased person and the grant of the letters of administration.Section 17 provides that;Subject to Section 18 of this Act, at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action), the title of that person to the land is extinguished.Section 38 provides that;(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.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

20. The import of the above provisions is that at the expiration of 12 years, of an adverse possessor’s uninterrupted occupation, the title of the true owner is extinguished and the adverse possessor can apply to this court to be registered in the place of the proprietor thereof.

21. The claim under adverse possession is anchored on two key conditions; time and possession. The claimant under adverse possession must show that they have been in possession of the land in dispute for a continuous period of over 12 years. In addition, their possession must be open, as of right, notorious, without permission and exclusive. There must be a demonstration of the dispossession of the land from the registered proprietor.

22. In the case of Wambugu vs. Njuguna [1983] KLR, the court held as follows;In order to acquire by statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or having discontinued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it.…the proper way of assessing proof of adverse possession would then 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 has been in possession of the requisite number of years.

23. Similarly, in Maweu vs. Liu Ranching & Farming Cooperative Society [1985] KLR 430, the Court of Appeal stated as follows;Thus to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances.

24. To prove adverse possession, the Applicant was under the legal burden to demonstrate all the conditions required under that doctrine as discussed above. For clarity, he was under duty to demonstrate that he was in open, continuous, notorious, uninterrupted, actual and exclusive possession of the suit property. The legal burden of proof in a case is always static and rests on the claimant throughout the trial. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides as follows;107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

25. Even where the Defendant does not testify in defence, the burden on the Plaintiff is not lessened, and it remains the same throughout the case. In the case of Charter House Bank Limited (Under Statutory Management) vs. Frank N. Kamau, Nairobi CA No. 87 of 2014 [2016] eKLR, the Court of Appeal stated as follows;In Karugi & Another vs. Kabiya & 3 Others [1987] KLR 347, this court held that the burden on the Plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the Defendant convinces the court that on a balance of probabilities; it proves the claim. Without such evidence, the Plaintiff is not entitled to judgment merely because the Defendant has not testified.

26. In the instant suit, the Applicant pleaded that he purchased the suit property in 1977 and 1979 respectively and that he had been in continuous occupation for 31 years since 1984, when the Respondent’s son sought to recover the land and refund the consideration. According to him, he started constructing permanent residential houses on the suit property in the year 2002 in the full glare of the Respondents. In his testimony, he stated that he had been in occupation of the suit property for 40 years since 1977 and has put up permanent residential houses. To prove these allegations, he produced a search certificate dated 9th June 2014 demonstrating that Parcel No. Iveti/Mung’ala/1556 was on 24th October 1990, registered in the names of Wandia Nzioka and Ngina Nzioka as tenants in common with each of them owning a half share. That property measures 0. 7 Ha, which is one and three quarters of an acre. Although the Plaintiff alleged to have been in possession, it is not clear whether possession began in 1977 or 1984. While that difference may not appear to be material as the period for possession ought to be just over 12 years, the acts done to show possession from the beginning of the period of possession, to the date of filing the case or after twelve years, must be clear in demonstrating dispossession of the suit property from the true owner, for over 12 years.

27. While the Applicant together with his witnesses were emphatic that the Applicant took possession of the suit property by putting up permanent houses and staying thereon, no thread of evidence was presented to prove this fact. The Applicant went to great lengths to prove purchase but did not attempt to prove continuous 12 years possession. The claim for adverse possession is not about how ownership was acquired, but it is about a trespasser who without force, without secret nor permission openly, publicly, exclusively, continuously, notoriously and as of right, dispossesses the true owner of their land. The dispossession is a fact which ought to be visible on the land. Having considered the evidence herein in its entirety I am unable to find evidence that shows continuous, uninterrupted, notorious, open and exclusive possession of the suit property by the Applicant.

28. While the Applicant lays claim on land measuring 100 feet by 75 feet from title Number Iveti/Mung’ala/1556, that title is held in common tenancy by the 1st and 2nd Respondents. The Applicant informed this court on 9th March 2022 that the 2nd Respondent was deceased and stated that his case was only against the 1st Respondent.

29. Under Section 91 (5) of the Land Registration Act No. 3 of 2012, where land is owned in common, each tenant is entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate. In this matter, Ngina Nzioka is deceased therefore her share is an undivided share in the whole. As the Applicant did not pursue the suit against her estate, then the deceased’s estate is entitled to the undivided share in the whole of the title. As the deceased’s share has not been severed by way of partition and since her estate is not party to these proceedings, the Applicant cannot obtain orders in respect of the suit property, as such orders shall have the import of condemning the deceased estate without granting them an opportunity to be heard, and therefore his claim cannot succeed on that ground.

30. The upshot of the aforegoing is that the Applicant has failed to prove his case on the required standard and the same is hereby dismissed. In view of the fact that this suit was undefended, I make no order as to costs.

31. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 8TH DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Mr. Mutava holding brief for Mr. Muumbi for ApplicantNo appearance for RespondentCourt Assistant – Josephine