[2023] KEELC 21182 (KLR)

Raphael v Esenyi & another (Environment & Land Case 6 of 2020) [2023] KEELC 21182 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21182 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment & Land Case 6 of 2020

BN Olao, J

October 31, 2023

Between

Were Benedict Raphael

Applicant

and

Fredrick Iseme Esenyi

1st Respondent

Protas Aroni Awuor

2nd Respondent

Judgment

1. Were Benedict Raphael (the Plaintiff herein) moved to this Court vide his Originating Summons dated 10th February 2020 in which he impleaded Fredrick Iseme Esenyi and Protas Aroni Awuor (the 1st and 2nd Defendants respectively) claiming to have acquired by way of adverse possession a portion of land measuring 2½ acres out of the land parcel No Bukhayo/Buyofu/442 (the suit land).

2. He therefore sought a determination of the following questions:a.Whether the Plaintiff has been in open and notorious possession of a portion of land measuring 2½ acres comprised in the land parcel No Bukhayo/Buyofu/442 for a period exceeding 12 years.b.Whether the 1st and 2nd Defendants’ title to a portion of land parcel No Bukhayo/Buyofu/442 measuring 2½ acres has become extinguished upon expiry of 12 years from the time the Plaintiff went into possession of the said land.c.Whether the Plaintiff has now acquired title to the said portion measuring 2½ acres by virtue of adverse possession.d.Whether the registration of Fredrick Iseme Esenyi and Protas Aroni Awuor as owners of the land parcel No Bukhayo/Buyofu/442 should be cancelled and the same be sub-divided and the Plaintiff be registered as owner of land parcel No Bukhayo/Buyofu/442 measuring 2½ acres.e.Who pays the costs?

3. Arising out of the above questions, the Plaintiff sought the following orders:1. That the rights of the Defendants over the land parcel No Bukhayo/Buyofu/442 measuring 2½ acres got extinguished by adverse possession upon expiry of 12 years from the date the Plaintiff came into possession.2. That the Defendants be perpetually barred from taking and/or using a portion of the land parcel No Bukhayo/Buyofu/442 measuring 2½ acres which has been in possession of the Plaintiff from 2006 to-date.3. That the Plaintiff be registered as the proprietor of a portion of the land parcel No Bukhayo/Buyofu/442. 4.That the Defendants do execute all the relevant documents to facilitate the sub-division of the land parcel No Bukhayo/Buyofu/442 into two portions and transfer a portion measuring 2½ acres in the name of the Plaintiff and in default, the Deputy Registrar do execute the same in place of the Defendants.5. That the Defendants do pay the costs of this case.

4. Together with his Originating Summons, the Plaintiff filed his supporting affidavit dated 28th June 2019 and a statement dated 2nd February 2022.

5. The gist of the Plaintiff’s case as can be gleaned from his affidavit and statement is that on or about 4th May 2006, he purchased from one Josephine Nabangala Juma a portion of land measuring 0. 95 hectares at a consideration of Kshs.102,125 which he paid in full and receipt thereof was acknowledged by the said Josephine Nabangala Juma and her daughter ROSE Wabwire Mukholi. That Josephine Nabangala Juma had purchased the portion of land from one Jonosatham Osenyi Iseme on 19th January 1984 and taken possession thereof. That the said portion which he now occupies and has put up buildings thereon as well as planting trees and other crops measures 2½ acres and is part of the suit land currently registered in the names of the 1st and 2nd Defendants. That he has been in peaceful, open and continuous possession of the said portion since 4th May 2006 to-date.

6. In support of his case, the Plaintiff filed the following documents:1. Sale agreement between the Plaintiff and Josephine Nabangala Juma for a portion of the land parcel No Bukhayo/Buyofu/442 measuring 0. 95 hectares.2. Sale agreement between Jonathan Osenyi and Juma Marudi Sitakhili dated 19th January 1984. 3.Green card for the land parcel No Bukhayo/Buyofu/442. The Plaintiff also filed the statement of his witness Rapahel Were Echesa (PW2) dated 19th September 2022. In the statement, the said witness confirms that he is a nephew to the Plaintiff who has allowed him and his brother Joseph Echesa Masakhwe to live on the same and take care of the crops having purchased it from Josephine Nabangala Juma.

7. The Plaintiff’s other witness Stephen Nabwayo Echesa (PW3) also signed a statement dated 19th September 2022. He too is a nephew of the Plaintiff and in that statement, he confirms that he was a witness on 4th may 2006 when the Plaintiff purchased from one JOspehine Nabangla Juma a portion of land measuring 0. 95 hectares out of the land parcel No Bukhayo/Buyofu/442 at a consideration of Kshs.102,125. That the said portion is clearly demarcated on the ground using sisal plants. That although the suit land is registered in the names of the Defendants, the said Josephine Nabangala Juma was in possession of a sale agreement showing that her husband Juma Marudi Sitakhili has purchased it from Jonosatham Osenyi.

8. The Originating Summons is opposed and both Defendants filed their replying affidavits dated 18th October 2021 in response to the same.

9. In his replying affidavit, the 1st Defendant deposed, inter alia, that he and the 2nd Defendant are the registered proprietors of the suit land which they acquired as beneficiaries of their late father Jonathan Osenyi Iseme’s estate. That he does not know either Josephine Nabangala Juma nor her husband and have not met them in his life time. That the sale agreement annexed to the Originating Summons is a forgery and there is no demarcated boundary on the said land. He added that the Plaintiff took advantage of his absence from home in Nairobi and forcefully entered the suit land which in 2006 was registered in the name of his deceased father and nobody had any right to dispose of the same. That the Plaintiff is a land grabber who should not use this Court to sanitize his illegal actions. In any case, the Plaintiff has not met the conditions for adverse possession.

10. In his replying affidavit, the 2nd Defendant deposed that the Plaintiff does not live on the suit land but lives in Mudende about 2 kilometres away. He added that he does not know Josephine Nabangala Juma nor her husband and neither has he seen them on the suit land. He also disputed the sale agreements filed herein stating that the Plaintiff entered the suit land in 2011 taking advantage of the Plaintiffs absence. He termed the Plaintiff a trespasser who should not be aided by this Court to perpetuate an illegality.

11. Submissions were thereafter filed both by Ms Sidika instructed by the firm of Bogonko Otanga & Company Advocates for the Plaintiff and Mr. Onsongo instructed by the firm of Obwoge Onsongo & Company Advocates for the Defendants.

12. I have considered the evidence by the parties and the submissions by counsel.

13. This being a claim to land by way of adverse possession and as was held by Kneller J in Kimani Ruchine & Another -v- Swife Rutherford & Company LTD 1976 – 80 1 KLR 1500:“The Plaintiffs 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 evasion) ..... The possession must be continuous. It must not be broken for any temporary purposes or by any endeavours to interrupt it or by any recurrent consideration; see Wanyoike Gathure V Beverly [1965] EA 514. ”

14. In Kasuve –v- Mwaani Investment Ltd & Others 2004 1 KLR 184, the Court of Appeal held thus:“And in order to be entitled to the land by adverse possession the claimant 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 – Wanje v Saikwa (No 2) [1984] KLR 284. A title by adverse possession can be acquired under Limitation of Actions Act for a part of the land and the mere change of ownership of the land which is occupied by another under adverse possession does not interrupt such person’s adverse possession – (see Githu v Ndeete [1984] KLR 776).”Such occupation must also be peaceful and without the permission of the owner – Grace Wairimu Soroma -v- Chaka Ltd & Others 2017 eKLR.

15. The Plaintiffs case is that he has been on the suit land since 4th May 2006 when he purchased 0. 95 hectares (2½ acres) from Josephine Nabangla Juma’s husband which portion is well demarcated on the ground. The occupation of the said 2½ acres by the Plaintiffs relatives is not really in doubt. When the 1st Defendant was cross-examined by Mr Otanga during the plenary hearing on 9th March 2023, he said:“The Plaintiffs relatives who live on the suit land have two houses where they live. The Plaintiff is the one who brought the relatives there. It is true that the Plaintiffs relatives are also growing food crops on the land which measures 11 acres in size. The Plaintiff’s relatives Raphael Wekesa Were and Masakho Were are utilizing only a portion of the suit land. The portion which they are utilizing has no boundary but there is a trench separating the land. I came from Nairobi in 2012 and that was when I found them there. I was informed that they had entered the suit land in 2011 and constructed their home thereon.”On his part, the 2nd Defendant said the following when cross-examined by Mr Otanga on 18th April 2023:“It is true that there is a portion measuring 2½ acres which me and the 1st Defendant do not utilize. It is true that on the portion measuring 2½ acres, there are two houses and a well which is utilized by the Plaintiff.”Occupation of 2½ acres is not really in dispute. Indeed it is conceded. Adverse possession is all about dispossession of the owner by the claimant. In Wambugu -v- Njuguna 1983 KLR 172, it was held that:“In order to acquire by the Statute of Limitations a 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 by having discontinued his possession of it. Dispossession of the property that defeats the title are acts which are inconsistent with his enjoyment of the soil from the purpose for which he intended to use it.”The Court went on to add that:“The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed and has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession for the requisite number of years.”In his supporting affidavit dated 28th July 2019, the Plaintiff averred on paragraph 10 thus:10“That I am enjoying quiet and peaceful possession of a portion of L.R No Bukhayo/Buyofu measuring 2½ acres or thereabout and have been in peaceful, open and continuous possession thereof from 4th May 2006 to-date.”There is nothing to show that the Plaintiff’s occupation or possession since 4th May 2006 has not been open, peaceful, continuous, un-interrupted and with the knowledge of the Defendants, the current registered proprietors thereof. This suit was filed on 10th February 2020 some 14 years after the Plaintiff had taken possession of the suit land. It matters not that he has his relatives living on it. It is sufficient that the suit land is occupied by his family or even agents. What is clear is that the Defendants have been dispossessed of the 2½ acres portion of the suit land as they have readily confirmed.

16. Counsel for the Defendants has poked holes in the sale agreement between the Plaintiff and Josephine Nabangala Juma on the ground that she had no capacity to sell property of a deceased person. This is how counsel has submitted at page 4 of his submission:“Your Lordship, the Plaintiff does not deny the fact that as at the time he allegedly purchased the parcel of land Bukhayo/buyofu/442, its two registered owners namely Osenyi Iseme and Barasa Iseme were deceased and no succession had taken place. As such, the said Josephine lacked the requisite locus standi to intermeddle with the deceased’s estate as alleged. This Honourable Court should therefore not be called upon to give orders that condone an illegality.”Counsel then goes on to add that infact the suit land did not exist. The fact is that the Plaintiff is not trying to enforce any land sale agreement between himself and Josephine Nabangala Juma over the suit land. His claim is based on adverse possession which is a prescriptive right. And in view of the Defendants own admission, that possession is not in doubt.

17. Counsel has also submitted that the Plaintiff only entered the suit land in 2011 and so the 12 year statutory period had not yet lapsed by the time this suit was filed. This Court is not convinced that the Plaintiff purchased the suit land in 2006 but left it fallow until 2011 as suggested. The Court is satisfied that he took possession from the year of the sale agreement. And if indeed the Plaintiff only took possession by entering the suit land in 2011, nothing stopped the Defendants from taking legal action to evict him. They did not have to wait until this suit was filed against them to bring up that issue.

18. Having considered all the evidence herein, I am satisfied that the Plaintiff has established his claim against the Defendants.

19. Accordingly, there shall be judgment for the Plaintiff against the Defendants jointly and severally in the following terms:1. The Plaintiff has acquired by way of adverse possession a portion of land measuring 2½ acres out of the land parcel No Bukhayo/Buyofu/442. 2.The Defendants’ right in the portion measuring 2½ acres out of the land parcel No Bukhayo/Buyofu/442 has been extinguished by operation of the law.3. The Defendants shall within 30 days of this judgment deliver to the Land Registrar Busia for cancellation the original title to the land parcel No Bukhayo/Buyofu/442 and execute all the relevant documents for the transfer of the portion measuring 2½ acres in the name of the Plaintiff.4. In default of (3) above, the Deputy Registrar of this Court shall execute all such documents on behalf of the Defendants and the Land Registrar will expense with the production of the original title deed.5. The Land Registrar and Surveyor shall ensure that in the registration of the said 2½ acres out of the land parcel No Bukhayo/Buyofu/442, the Plaintiff’s portion shall in as much as possible include where his houses are situated.6. The Defendants shall meet the Plaintiff’s costs.

JUDGMENT DATED, SIGNED AND DELIVERED ON THIS 31ST DAY OF OCTOBER 2023 BY WAY OF ELECTRONIC MAIL.Right of Appeal.BOAZ N. OLAOJUDGE