[2023] KEELC 21171 (KLR)

Obel v Kirui (Environment & Land Case E009 of 2021) [2023] KEELC 21171 (KLR) (30 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21171 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment & Land Case E009 of 2021

MN Mwanyale, J

October 30, 2023

Between

Millie Chepkemboi Obel

Applicant

and

Kimengich Arap Kirui

Respondent

Judgment

1. Vide her Originating Summons dated 9th December 2021, Millie Chepkemoi Obel, the Applicant now turned Plaintiff sought for judgment against the Respondent now Defendant Kimengich arap Kirui for;i)A declaration that the titles of Kimengich arap Kirui free hold interest in Land Registration No. Nandi/Kibwareng/384 has been extinguished by her claim for adverse possession.ii)A declaration that the Plaintiff has acquired freehold Interest in land parcels registration No. Nandi/Kibwareng/384 by her adverse possession thereof for a period of more than 12 years which is from 1998 to date.iii)An order do issue requiring and directing the Land Registrar Nandi County to register the Plaintiff Millie Chekemoi Obel as the owner of land parcel registration No. Nandi/Kibwareng/384 in place of Kimengich Arap Kirui.iv)The Plaintiff purchased the said entire portions of the suit property Nandi/Kibwareng/384 from the Defendant being Kimengich arap Kirui in the year 1998 where immediately after the Agreement she took over actual and physical possession of the said property and she planted mature tea leaves and she has been in peaceful and actual occupation and possession of the said land, continuously uninterrupted from 1998 to date nec vi, nec clam and nee precario which is a period over 12 years.v)Costs of the application be provided by the Defendant.

2. The Plaintiff sought and was allowed to serve the Defendant by substituted service as the Defendant was said to have left the suit property upon the sale.

3. The Plaintiff served via an advertisement in the Daily Nation of October 27,2002 the advert appearing on the classified pages at page 36.

4. Thereafter the Plaintiff requested for interlocutory judgment which was endorsed by the Deputy Registrar of this Court, where after the matter proceeded as undefended by way of a formal proof.

PLAINTIFF’S CASE AND EVIDENCE: 5. It was the Plaintiff’s case that she purchased the suit property Nandi/Kibwareng/384 from Kimengich Arap Kirui in the year 1998 and took possession of the same by planting tea leaves and has been in peaceful and actual physical occupation for more than 12 years from 1998; to date of filing.

6. The Plaintiff testified as PW1 and adopted her witness statement dated 17/5/2023 as part of her evidence in chief.

7. In her testimony before Court she slated that she had bought the suit land in 2003. She did not have the agreement for sale in Court, she had bought the property no transfer was done and the Defendant had handed vacant possession.

8. She further testified that the Defendant’s son had taken over possession of some portions of the property where she had planted tea leaves in 2011 but she had remained in occupation of 4. 7 acres while the Defendant’s son had taken over 1. 3 acres which she had grown tea.

9. PW2, Mr. Haron Cheruiyot Limo testified and adopted his witness statement dated 17/5/2023 as part of his evidence in chief. It was his testimony that he had known the Plaintiff for about 20 years and that she used about 2 acres of Nandi/Kibwareng/384 since 2003.

10. With the testimony of the two witnesses the Plaintiff case was closed and as the matter was undefended the defence case equally was deemed closed and the Court directed oral submissions to be made.

11. The Plaintiff’s Advocate relied on the testimony of the witness on record and submitted for judgment to be entered in favour of her client.

12. Before framing of issues for determination, the Court observes that this suit was undefended and that the burden on the Plaintiff to prove her case did not shift. The Court of Appeal in the decision in the case of Karugi and Another vs Kabiya and 3 others 1983 (eKLR)“The burden on a Plaintiff to prove his case remains the same throughout the case even though the burden may become easier to discharge where the matter is not validly defended, the burden of proof is not way lessened because this is heard by way of formal proof.”

13. Having set out the principles which shall guide the Court in determining this undefended case. The Court has considered the pleadings the testimony of the witnesses and evidence in support of the case, and submissions by Counsel and frames the following as issues for determination;i)whether or not the Plaintiff has tendered evidence to support the originating summons now turned plaint,ii)whether or not the Plaintiff has proven her case,iii)What reliefs ought to issue?

ANALYSIS AND DETERMINATION: 15. In her Originating Summons, supporting affidavit as well as the witness statement, the Applicant now Plaintiff pleads that she bought the suit property from the Defendant in 1998.

16. This is found at paragraph 4, of the Originating Summons now converted to a plaint, paragraph 3 and 7 of the supporting affidavits as well as paragraph 7 of the witness statement.

17. In her testimony before Court the Plaintiff and her witness PW1 stated that she had purchased the suit property in 2003 and was handed possession of the suit property then.

18. The Plaintiff did not produce a copy of the Agreement for Sale for documenting the purchase and/or entry into the suit property?

19. The Plaintiff did not offer any evidence to support the purchase in 1998 as pleaded or in 2003 as per her testimony.

20. The Court finds that her pleadings and evidence to be at variance. The same brought about by the purchase pleaded to have been in 1998 but in her testimony together with her witness she stated that she had purchased in 2003, and the fact that no agreement for sale was produced.

21. The Court of Appeal in its decision in he case of IEBC and Another vs Stephen Mutinda Mule and 3 others Civil Appeal No. 219/2013 (2014) eKLR quoted the Nigerian Supreme Court decision in Adetound Uladeji (NIG) Ltd vs Nigeria Breweries where it was held“It was now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put on other way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”

22. On the totality of the evidence produced in Court, the Court finds that the Plaintiff did not adduce evidence to support the pleadings as the evidence and the pleadings are at variance.

23. Thus in answer to issue number one, the Court answers the same in the negative.

24. On the second issue as to whether the Plaintiff has proven the ingredients of adverse possession; the ingredients were stated in the case of Kimani Rucire vs Swift Thitherfood Company Ltd (1997) eKLR, where the Court stated;“The Plaintiff have to prove that they have used this land which they claim as of right; nec vi, nec clam, nec plecario, (no force, no secrecy no permission) so, the Plaintiff must show that the Defendant had knowledge or the means of knowing, actual or constructive) of the possession of occupation…….the possession must be continuous, it must not be broken for any temporary purposes…….”

25. The above decision and the ingredients stated therein has been was upheld by the Court of Appeal in the decisions in Francis Gicharu Kariri vs Peter Njoroge Mairu (Civil appeal no. 293/2002) as well as the decision in the case of Titus Kigoro Muayi vs Peter Mburu Kimani Civil Appeal No. 28/2014 which decisions confirmed that knowledge the Defendant of the occupation is an ingredient of adverse possession.

26. In Titus Kigoro Munyi vs Peter Mburu Kimani the Court held as follows;“Guided by the dicta as stated by Kneller J herein above and as adopted by this Court in Francis Gicharu Kariri vs Peter Njoroge Mairu, we are of the view that a claim for adverse possession actual or constructive knowledge of adverse possession by a third party on the part of the registered owner must be proved…”

27. As already observed, the suit is undefended. The Plaintiff stating that the whereabouts of the Defendant were unknown. The question thus is whether the Defendant is aware of the occupation by the Plaintiff.This would have been put to rest by production of the agreement for sale as an exhibit which would have implied knowledge by the Defendant but since the agreement of sale was not produced, the issue of knowledge by the Defendant of the occupation by the Plaintiff is not proved.

28. The Plaintiff further testified that the Defendant’s son took over a portion of her property which she had grown tea leaves in 2011, hence her occupation was not peaceful by virtue of the re-entry by the Defendant’s son.

29. The Court is equally at a loss as to why the Plaintiff stated that the Defendant was out of reach yet the Defendant’s son and his whereabouts are known. The Court finds that the Plaintiff was not truthful as to the whereabouts of the Defendants.

30. In answer to the second issue the Court finds the Plaintiff has not proved knowledge of her occupation by the Defendant and that her occupation has not been peaceful; due to the fact that the Defendant’s son interfered with her possession.

31. In answer to issue 2 the Court finds the Plaintiff has not proven her case on a balance of probabilities as the ingredients of adverse possession have not been proved.

32. In answer to issue number 3, as the Plaintiff has not proven her case, the inevitable fate of this case is that the Plaintiffs suit is dismissed.

33. There shall be no orders as to costs.

Judgment, Delivered and Dated at Kapsabet this 30th day of October 2023. Hon. M. N. Mwanyale,JUDGEIn the presence of;Mrs. Chumba for the Plaintiff