[2020] KEELC 1789 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC. CASE NO. 804 OF 2017(O.S)

RAPHAEL NJOROGE WARARI..................................................................1ST PLAINTIFF

PETER MUNGAI KARUA............................................................................2ND PLAINTIFF

MOSES MATHENGE GIKONYO...............................................................3RD PLAINTIFF

JOYCE WANGECHI WAIYIGO.................................................................4TH PLAINTIFF

GEORGE KAMAU NYOKABI....................................................................5TH PLAINTIFF

HENRY NDUNG’U WARARI.......................................................................6TH PLAINTIFF

SAMUEL GACHIGI CHEGE.......................................................................7TH PLAINTIFF

MAGDALINE NJAMBI WANDUI..............................................................8TH PLAINTIFF

JOHNSON NDIRANGU MWANGI.............................................................9TH PLAINTIFF

SIMON KINUTHIA KURIA.......................................................................10TH PLAINTIFF

GEORGE NJUGUNA WANJIRU...............................................................11TH PLAINTIFF

MOSES KAGIKAIKINYA...........................................................................12TH PLAINTIFF

JANE MUTHONI NJOROGE....................................................................13TH PLAINTIFF

-VERSUS-

JECINTA NYAKINYUA KARANJA.................................................................DEFENDANT

JUDGMENT

By an Originating Summons dated 19th October 2017, the Plaintiffs herein filed this suit against the Defendant seeking for orders that;

1. THAT the Plaintiffs have acquired title by Adverse Possession to the whole of L.R. No. RUIRU EAST BLOCK 2/3319measuring 0. 3319 Ha (00. 983 acres) situate in Ruiru Sub-County, Kiambu County.

2. THAT the said RUIRU/RUIRU EAST BLOCK 2/3319, be subdivided and be transferred to the Plaintiffs in plots of 40 by 60 feet each (save for the 7th Plaintiff who is entitled to three (3) plots of 40 by 60 and 12th Plaintiff who is entitled to two (2) plots of 40 by 60 each) in place of the Defendant and the Defendant do sign all necessary forms of subdivision, consent and transfer and in default the Deputy Registrar of this Honourable court do sign the same.

3. That the costs of this suit be provided for.

The Originating Summons is supported by the affidavit of Raphael Njoroge Warari, the 1st Plaintiff, sworn on 21st October 2017, and sworn on his behalf and on behalf of the other Plaintiffs. He further averred that his Co-Plaintiffs were his immediate neighbors in the parcel of land and that they each separately, have lived on the land occupying a portion of 40 by 60 feet, since the year 2003 and have developed each of the said plots.

He averred that the plots have been developed as follows; he has built permanent three bedroom house, Peter Mungai Karua,built three bedroom semi-permanent house. Moses Mathenge Gikonyobuilt a permanent three bedroom house. Joyce Wangechi Waiyigo a permanent three bedroom house, George Kamau Nyokabia permanent three bedroom house, Henry Ndung’u Warari has been cultivating his plot planting maize, beans and potatoes. Samuel Gachigi Chege has been cultivating his plot planting maize, beans and potatoes. Magdaline Njambi Wandui,built a permanent three bedroom house, Johnson Ndirangu Mwangibuilt a permanent three bedroom house with a shop and hotel, Simon Kinuthia Kuriconducts a charcoal and wood business on his plot, George Njuguna Wanjirubuilt a permanent three bedroom house, Moses Kagika Ikinya,a permanent house comprising four portions, Jane Muthoni Njorogehas been cultivating subsistence crop such as maize, potatoes and beans.

He averred that they entered into the land in the year 2003, after the same was sold to them by one Samuel Njuguna Gatu t/a Gatu Properties, who gave them vacant possession as evidenced by sale agreements and the share certificate from Gatu Properties. It was his contention that the said Samuel Njuguna Gatu, had bought the land from Jonhson Martin Warui Ngari, who had initially bought it from the Defendant herein vide a sale agreement dated 11th June 2003, as evidenced by the two sale agreements dated 11th June 2003 and 23rd September 2010marked as annexture R/153/XVII and R/153XVIIIrespectively.

He further averred that they have constructed homes thereon and live with their families and that they have been in exclusive, continuous and interrupted occupation and possession of the land and the individual plots they occupy for more than thirteen (13) years. He contended that their occupation and possession have been adverse to the title of the Defendant and they have therefore acquired the land by Adverse Possession.

Despite being served with the suit papers, the Defendant did not enter appearance and therefore did not participate in the proceedings. The matter proceeded by way of viva voce evidence wherein the Plaintiffs called one witness and closed their case.

PLAINTIFFS’ CASE

PW1 Raphael Njoroge Warari,the 1st Plaintiff herein testified that he had authority to plead on behalf of the other Plaintiffs. He adopted his Supporting Affidavit dated 21st October 2017,in support of the Originating Summons and his witness statement dated 19th October 2017,as part of his evidence, He further produced the list of documents as exhibits 1 to 17 in Court.

It was his testimony that since he entered the property in 2003, he has put up various structures and that the whole land that has been occupied by the 13 of them is 0. 398ha,which is approximately 0. 983 acres. He further testified that the Defendant has never interrupted their occupation. That the 7th Plaintiff owns 3 plots of the same size and the 12th Plaintiff owns two plots and he urged the Court to make a finding that they have acquired the suit property by way of Adverse Possession and order that the land be transferred to their respective names.

After close of viva voceevidence, the Plaintiffs filed written submissions which the Court has carefully read and considered.

Despite service, the Defendant failed to enter appearance, file a Defence and hence failed to defend the suit. The Plaintiffs are the ones who have alleged and they have a duty to prove their case on the required standard as provided by Section 107 of the Evidence Act. Therefore, it was upon the Plaintiffs to call sufficient evidence and prove their case on the required standard. Section 107 of the Evidence Act states:-

(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.

Even though the suit is undefended, the Court still has a duty to interrogate the evidence produced before it in order to arrive at as just determination as exparte evidence is not automatic prove of a case. See the case of Gichinga Kibutha..Vs..Caroline Nduku (2018) eKLR, wherethe Court held that:-

“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

The court has now carefully considered the pleadings on record and the written submissions. The court too has considered the relevant provisions of the law and finds the issues for determination are:

i. Whether the Plaintiffs have proved a claim of Adverse Possession.

ii. Who should bear the costs of the suit.

i. Whether the Plaintiffs have proved a claim of Adverse Possession.

The guiding provisions of law with regards to Adverse Possession is Section 38 (1) and (2) Limitation of the Actions Actwhich provides as follows:

(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited insection 37of 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.

For a party to succeed in a claim of adverse possession, the person must satisfy the Court that he/ she has been has been in Continuous and uninterruptedpossession without the consent of the owner of the land; that his/her interests were inconsistent to the interests of the true owner of the land, the possession has to be Open and notorious, and that the possession has to be actual, to enable the owner to have a cause of action which if he/she fails to act on within the required legal period, then he/she will be estopped by the law of Limitation to claim back the land, The possession has to be Exclusive, to avoid confusion on who is entitled to obtain the title to the suit land once the limitation period lapses.

The Court must then establish whether the above principles have been met by the Plaintiffs in order to ascertain whether they have met the threshold for proving ownership through Adverse Possession.

The Plaintiffs have claimed that they have been in possession of the suit property from the year2003,and that while some of them have built structures in the suit property, some of them have cultivated and used the said land. The Court has seen the photographs produced as evidence and in the absence of any evidence to controvert the same, then the Court is satisfied that the Plaintiffs have been in occupation of the suit property. .

On whether the Plaintiffs have been in actual and continuous possession of the suit property for a period of over 12 years, the Court notes that their evidence has not been controverted. Further the Plaintiffs have averred that they took possession of the suit property in 2003, after buying the suit property from one Samuel Njuguna Gatu. This suit was filed in 2017, It is there not in doubt that from the year 2003 to 2017, 12years had since lapsed and therefore the Plaintiffs have been in possession of the suit land for a period exceeding 12years. Having proved that they are in possession of the suit property, and given that the Plaintiffs evidence is uncontroverted, the Court finds and holds that the Plaintiffs have been in actual and continuous occupation of the suit property for a period of 12 years.

The Plaintiffs also needed to prove that they had dispossessed the Defendant of the said land and that the Defendant had been dispossessed without her consent and that the Plaintiffs further enjoyed such quiet possession for a period of 12 years. See the case of Wambugu …Vs… Njuguna(1983) KLR 172 where the Court of Appeal stated as follows relying on the decision in Littledale…Vs… Liverpool College(1990) I Ch. 19:

“The next question therefore is what constitutes dispossession of the proprietor. Bramwell LJ in Leigh v Jack said at 273, that to defeat a title by dispossessing the former owner acts must be done which are inconsistent withhis enjoyment of the soil for the purpose for which he intended to use it”

The Court has seen the certificate of official search dated 1st September 2016, confirming that the Defendant is the registered owner of the suit property. The Plaintiffs have testified that the Defendant has never interfered with their occupation. The Court having held that the Plaintiffs have been in occupation of the suit property for over 12 years, and given that the Plaintiffs evidence have not been controverted, it is therefore not in doubt that the Plaintiffs have enjoyed quiet possession over the suit property and that their occupation has been adverse to the rights of the Defendant. Without any evidence to controvert the Plaintiffs’ evidence the Court further finds and holds that the Defendant who is the registered owner of the suit property was dispossessed off the suit property by the Plaintiffs as the Plaintiffs have been in continuous and uninterrupted occupation and that they have used the property to the adverse interests of the owner, even if there is a claim that they had bought the suit property. See the case of Samwel Nyakenogo …Vs… Samwel Orucho Onyaru [2010] eKLR, where the Court of Appeal held as follows:

“For about 19 years, the respondent was in exclusive possession of the portion of the land bought from the deceased openly and as of right, and during all this time, the respondent’s said possession was not interrupted by the registered proprietor, the deceased. In our view, the purported application for letters of administration in respect of the deceased land West Kitutu/Mwakibagendi/28 which was confirmed on 15th June, 1999 did not interrupt the respondent’s adverse possession of the portion he bought from the deceased.’

Consequently, the court finds and holds that the Plaintiffs have proved their Claim of Adverse Possession.

ii) Who is to bear costs of the suit?

Section 27 of the Civil Procedure Act grants the Court discretion to either award or not to award costs of the suit. Ordinarily, costs do follow the event and is normally awarded to the successful litigant. The Plaintiffs herein are the successful litigants and are therefore entitled to costs of the Originating Summons.

Having now carefully considered the pleadings herein, the annextures thereto and the written submissions, the court finds that the Plaintiffs have proved their case on the required standard of balance of probabilities. For the above reasons the instant Originating Summons dated 19th October 2017,is allowed entirely with costs to the Plaintiffs.

It is so ordered.

Dated, signed andDelivered atThikathis9th day of July2020.

L. GACHERU

JUDGE

9/7/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With consent and virtual appearance of:

Mr. Wahome Gikonyo for the Plaintiffs

No consent for the Defendant

L. GACHERU

JUDGE

9/7/2020