[2017] KEHC 2380 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC CASE NO. 11 OF 2015 (O.S)

IN THE MATTER OF L.R. NO. MWEA/MUTITHI/SCHEME/513

AND

IN THE MATTER OF SECTION 38 OF THE LIMITATION

OF ACTIONS ACT CAP 22 OF THE LAWS OF KENYA

ORDER 37 RULE 7 AND 14 OF THE CIVIL PROCEDURE RULES

BETWEEN

PURITY WANGECHI MITHAMO.....................................PLAINTIFF

VERSUS

BERNARD MAINA NYAGA...........................................DEFENDANT

JUDGMENT

By an Originating Summons dated 12th February 2015 and filed herein on 13th February 2015, the plaintiff sought judgment against the defendant in the following terms:

1. That the plaintiff be declared to have become entitled to one (1) acre of land parcel No. MWEA/MUTITHI/SCHEME/2841 (formerly part of land parcel No. MWEA/MUTITHI/SCHEME/513 registered under the provisions of the Registered Land Act CAP 300 Laws of Kenya by virtue of adverse possession thereof by the plaintiff who has been in open, exclusive and continuous and/or un-interrupted possession or occupation for a period of over 12 years.

2. That the title, rights and interest of the defendant over the aforesaid land parcel No. MWEA/MUTITHI/SCHEME/2841 are extinguished so that the defendant’s title should be recalled and cancelled.

3. That the Land Registrar Kirinyaga do register the plaintiff as the proprietor of land parcel No. MWEA/MUTITHI/SCHEME/2841 free from all encumbrances.

4. That the costs of this summons be borne by the defendant.

The summons was, as is required, supported by her affidavit and a copy of the register showing that land parcel No. MWEA/MUTITHI/SCHEME/2841 (hereinafter the suit land) is registered in the names of the defendant. She also annexed a copy of the register with respect to land parcel No. MWERUA/MUTITHI/SCHEME/513 which was closed on 25th April 2014 following its sub-division to give rise to four parcels including the suit land. In her supporting affidavit dated 12th February 2015 she deponed, inter alia, that the defendant is the registered proprietor of the suit land which is formerly part of land parcel No. MWERUA/MUTITHI/SCHEME/513 and that she has been in open, exclusive and un-interrupted possession and occupation of one (1) acre out of the suit land for over 12 years having fully developed it by planting crops thereon. That the defendant has at all material times been aware about her possession and occupation of a portion of the suit land long prior to his registration as the proprietor thereof.

In his replying affidavit, the defendant deponed that his late father NYAGA THIGITI who died in 1977 was the original owner of land parcel No. MWEA/MUTITHI/SCHEME/513 which passed to him following orders made in KERUGOYA RESIDENT MAGISTRATE SUCCESSION CAUSE No. 137 of 2002 and he became the registered owner in 2009 when the plaintiff placed a restriction thereon having entered the land illegally in 2008.

That the plaintiff has therefore only been in occupation of the suit land for six (6) years and in 2009, the defendant filed a suit seeking the removal of the restriction which was removed by the District Officer Wanguru. That therefore, the plaintiff’s occupation of the suit land has not been open and without interruption.

In a further affidavit dated 23rd May 2017 and filed with leave of the Court, the plaintiff deponed, inter alia, that she has been in exclusive and continuous occupation and possession of one (1) acre out of the suit land from 1999 having entered the same after her husband EPHANTUS MITHAMO KIMOTHO entered into a sale agreement dated 18th October 1999 with one JOHN NJAU NYAGA the defendant’s brother. A copy of the said agreement and some receipts were annexed thereto – annexture PWM 9 (a) (b) and (c). That after the succession proceedings in KERUGOYA SUCCESSION CAUSE No. 137 of 2002, land parcel No. MWEA/MUTITHI/SCHEME/513 was divided into four (4) portions being MWEA/MUTITHI/SCHEME/2841 to 2844. That the decree issued in KERUGOYA ABRITRATION CASE No. 20 of 2009wrongly referred to the land subject of this dispute as MWEA/MUTITHI/SCHEME/1615 whereas the correct number is MWEA/MUTITHI/SCHEME/513 as per the proceedings in the Tribunal copies of which were also annexed – annextures PWM 10 (a)and(b).

The parties were the only witnesses to their respective cases and both asked the Court to rely on the documents filed herein. The plaintiff testified that she entered the suit land in 1999 when it was still registered in the names of NYAGA THIGITI the defendant’s father as land parcel No. MWEA/MUTITHI/SCHEME 513 and continues to occupy one (1) acre thereof where she has planted rice. That following the sub-division of the said land, she now occupies one (1) acre out of resultant sub-division being MWEA/MUTITHI/SCHEME/2841 (the suit land) that is registered in the names of the defendant. She added that the suit land was subject of a Civil Case No. 20 of 2009 where it was decreed that she be awarded one (1) acre out of the suit land although the said decree erroneously refers to the land as MWEA/MUTITHI/1615. She added that when the defendant filed Case No. 201 of 2009 seeking the removal of the restriction that she had placed on the suit land, she filed a defence but the restriction was removed on 11th March 2014 without her knowledge and on the instructions of the District Commissioner Mwea West but she is still living on the suit land. That the defendant filed a Criminal Case against her being WANGURU COURT CRIMINAL CASE No. 336 of 2014 for forceful detainer but she was acquitted. Her case is that she entered the suit land in 1999 and has been in possession of the same since after her husband EPHANTUS MITHAMO purchased it from the defendant’s brother one JOHN NJAU NYAGA as per the two agreements dated 18th October 1999 and 25th November 1999 – Plaintiff’s Exhibits 11 (e) and 11 (b).

The defendant’s case was that land parcel No. MWEA/MUTITHI/SCHEME/513 belonged originally to his father but passed on to him following Succession proceedings. He then obtained the title thereto in his names and asked the plaintiff to vacate in 2009 but she refused and placed a restriction thereto. He therefore filed a case at KERUGOYA COURT BEING CASE No. 201 of 2009 seeking the removal of the restriction which was however removed by the District Commissioner and so he withdrew the case. He then sub-divided the original land into four portions being MWEA/MUTITHI/SCHEME/2841, 2842, 2843 and 2844 which he currently occupies. That the Court at WANGURU had given the plaintiff land parcel No. MWEA/MUTITHI/SCHEME/1615 but he filed an appeal at Nyeri which is still pending. That the plaintiff was also charged for trespass in 2009. He therefore urged the Court to dismiss this suit.

Submissions have been filed both by MR. NGIGI GICHOYA instructed by the firm of NGIGI GICHOYA ADVOCATES for the plaintiff and MS KIMANI instructed by R.M. KIMANI & CO. ADVOCATES for the defendant.

I have considered the parties oral and documentary evidence as well as the submissions by counsel.

The plaintiff’s suit is premised on the pleading that she has been in adverse possession of one (1) acre out of the suit land since 1999 when she and her husband went into possession thereof following an agreement of sale entered into with the defendant’s brother one JOHN NJAU NYAGA. The defendant denies this arguing that infact the plaintiff entered into the suit land in 2008 and he filed a case against her in 2009. As was held in the case of TITUS KASUVE VS MWAANI INVESTMENT LTD C.A CIVIL APPEAL No. 35 of 2002 (2004 1 K.L.R 184), a party claiming land registered in the names of another person through adverse possession must prove:

“…… that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner on his own volition”.

It is now well established that the combined effect of the provisions of Section 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of the adverse possession of the land – BENJAMIN KAMAU VS GLADYS NJERI C.A CIVIL APPEAL No. 2136 of 1996. It is also common knowledge that both Section 28 (h) of the Land Registration Act 2012 and Section 7 of the Land Act 2012 recognize the doctrine of adverse possession.

The thread that runs through the submissions of the plaintiff’s counsel is that she entered the suit land in 1999 as deponed in her further affidavit sworn and filed on 23rd May 2017 and not in 2009 as deponed in her earlier supporting affidavit dated 20th July 2015 and filed herein on 29th July 2015 in support of her application seeking an order to restrain the defendant from evicting, transferring, selling, alienating or in any way interfering with the plaintiff’s right to the suit land. That application was of course dismissed by this Court in a ruling delivered on 22nd April 2016.

The defendant’s counsel submits on the other hand that the plaintiff entered the suit land in 2009 and has therefore not been in occupation thereof for the requisite twelve (12) years. Further, that the said occupation has been interrupted by several cases.

In my view, the following issues call for my determination:

1. Did the plaintiff and her husband enter the suit land in 1999 as she alleges or in 2009 as the defendant alleges.

2. If the plaintiff entered the suit land in 1999, has her occupation of one (1) acre thereof been exclusive, open and as of right for an un-interrupted period of twelve (12) years having disposed the defendant or by the discontinuation of possession by the defendant on his own volition.

3. Or, as alleged by the defendant, did the plaintiff only go into occupation in 2009 and therefore by the time this suit was filed on 13th February 2015, she had only been on the suit land for six (6) years and therefore does not warrant the orders donated by Section 38 (1) of the Limitation on which this suit is premised?

There is no doubt that the plaintiff and her husband took possession of one (1) acre out of the suit land in 1999. In her further affidavit filed hereon on 23rd May 2017 and which was not part of the documents earlier filed herein, the plaintiff annexed a copy of an agreement between her husband EPHANTUS MITHAMO KIMOTHO and the defendant’s brother one JOHN NJAU NYAGA dated 18th October 1999 by which the plaintiff’s husband purchased one (1) acre out of the original land parcel No. MWEA/MUTITHI/SCHEME/513 at a consideration of Ksh. 70,000. The purchaser was to cultivate the land portion as the succession process was being determined as provided in clause six (6) of the said agreement. So for all practical purposes, the plaintiff and her husband were in possession since 1999. Although the defendant denies this in his replying affidavit in which he has deponed in paragraph nine (9) and ten (10) that;

9: “That the plaintiff illegally and without any justification entered into the possession of the land in 2008”

10: “That the plaintiff has therefore been in occupation of the land for some 6 years”,

it became clear in the course of the trial that indeed the plaintiff took possession in 1999. In cross-examination by MR. NGIGIfor the plaintiff, the defendant said:

“My father died in 1977 and I was the administrator of his Estate. The land was registered in my names. It is true that the plaintiff went into the land in 1999. It is true that the first case over this land was filed in 2009 and the land Tribunal ordered that the plaintiff be given one acre out of land parcel No. MWEA/MUTITHI/SCHEME/513”.

Secondly, the defendant did not deny that there was an agreement in 1999 by which his brother JOHN NJAU NYAGA sold a portion of the suit land to the plaintiff’s husband. The defendant infact confirmed that he was aware of the said agreement. Again during cross-examination by MR. NGIGI, he said:

“I have seen the plaintiff’s documents being the agreement in respect to the suit land. JOHN NJAU NYAGA was selling land to EPHANTUS MITHAMO the husband to the plaintiff. It is true that even when the agreement was being drawn, the land was in my father’s names”.

I would therefore answer issues (1) and (3) above by making a finding that the plaintiff entered the suit land in 1999 following a sale agreement with the defendant’s brother and therefore for purposes of adverse possession, time started running in 1999. And since as per paragraph five (5) of the said agreement it was subject to the consent of the Land Control Board which appears not to have been sought or granted, time started running six (6) months from 18th October 1999 when the agreement was executed. Time cannot be computed from 2009 as alleged by the defendant and neither is it correct to say that the plaintiff has only been on the suit land for six (6) years.

The crucial issue, however, is whether even though the plaintiff has occupied the suit land since 1999, she has met the requirements set out in the TITUS KASUVE case (supra) and other cases that would entitle her to orders in adverse possession. The defendant’s counsel has submitted that the plaintiff’s occupation was infact interrupted in 2009 when the defendant asked her to vacate. There is merit in that submission. It is common knowledge that the defendant filed KERUGOYA PRINCIPAL MAGISTRATE’S CIVIL CASE No. 201 of 2009 on 9TH JUNE 2009 seeking an order that the plaintiff removes the restriction placed on land parcel No. MWEA/MUTITHI/SCHEME/513. That suit was never heard because the defendant withdrew it after the District Commissioner Mwea removed the restriction albeit without the plaintiff’s knowledge. It is clear from GITAU VS NDEETE 1984 K.L.R 776 that time ceases to run under the Limitation of Actions Acteither where the owner takes or asserts his right or when his right is admitted by the party claiming through adverse possession. Such assertion occurs when the owner takes legal proceedings or makes an effective entry into the land. Therefore, when the defendant filed KERUGOYA PRINCIPAL MAGISTRATE’S CIVIL CASE No. 201 of 2009,he interrupted the plaintiff’s occupation of the suit land and by that time, the plaintiff had only been in occupation for ten (10) years which was two (2) years short of the statutory limit period required in law. Of course the defendant’s submission that time for purposes of adverse possession would only start running from 2009 when the suit land was registered in his names cannot be correct. The authority for that proposition is GITHU VS NDEETE (supra) where the Court of Appeal said that the mere change of ownership of land claimed by an adverse possessor does not interrupt such possession. Indeed by virtue of Section 28 (h) of the Land Registration Act, such an adverse possessor enjoys overriding rights which go with the land. That provision provides as follows:

“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interest as may for the time being subsist and affect the same without their being noted on the register –

(a)-

(b)-

(c)-

(d)-

(e)-

(f)-

(g)-

(h)- rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription”.

In my view however, the defendant’s act in filing KERUGOYA PRINCIPAL MAGISTRATE’S CIVIL CASE No. 201 of 2009against the plaintiff was a clear assertion of his right to the suit land which effectively interrupted the plaintiff’s occupation thereof and extinguished any claim that she may have validly laid on the said land by virtue of her adverse possession thereof. It is unfortunate that the plaintiff has lost both the suit land and the purchase price which, subject to the law of limitation, can be pursued in another forum from the party who received it.

Ultimately therefore, and upon considering all the evidence herein, I find no merit in the plaintiff’s Originating Summons filed herein on 13th February 2015. It is hereby dismissed and in the circumstances of this case, I make an order that each party meets their own costs.

B.N. OLAO

JUDGE

6TH OCTOBER, 2017

Judgment dated, delivered and signed in open Court at Kerugoya this 6th day of October 2017

Mr. Ngigi for Plaintiff – present

Mr. Kimani for Defendant – absent

Defendant – present

Right of appeal explained.

B.N. OLAO

JUDGE

6TH OCTOBER, 2017