[2018] KEELC 2274 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MURANG’A

E.L.C NO. 419 OF 2017(O.S)

SAMSON KAMANDE NJORA - PLAINTIFF

VS

BENARD KANGETHE NJAU - DEFENDANT

JUDGMENT

1. Samson Kamande Njora took out originating summons pursuant to the provisions of Order 37 Rule 3 of the Civil Procedure Rules and Section 38 of the Limitations of Actions Act Cap 22 and Section 1A & 1B of the Civil Procedure Act against the Defendant, Benard Kangethe Njau in which he sought to be declared the owner of a portion of 0. 5 acres of the land known as LOC 20/Kambirwa/5327 registered in the name of the Defendant by reason of the doctrine of adverse possession.

2. The Originating summons is supported by the affidavit sworn by Samson Kamande Njora on the 10/7/17. He states that on or about the 9/7/96 the Defendant sold to him 0. 5 acres out of parcel No LOC 20/Kambirwa/5327 which was then registered in the name of Wanjiru Njau, the Defendant’s mother. The purchase price was Kshs. 35,000/- out of which he paid Kshs 19,000/-. The balance of Kshs.16,000/- was payable at the transfer of the portion into his name. He stated that it was a mutual term of the agreement that the Defendant was to apply for letters of grant of administration for the estate of the late Wanjiru Njau. He stated that he was given possession in 1996 and has been in occupation todate. That he has been reminding the Defendant to comply with the terms of the aforesaid agreement for which the Defendant has been promising to so transfer the land to him. He attached a copy of the agreement of sale dated the 9/7/96.

3. Further the Plaintiff states that he later carried out a search on the land and realized that the Defendant had subdivided the original land LOC 20/Kambirwa/545 into 2 plots to wit; LOC 20/Kambirwa/5327 and LOC 20/Kambirwa/5328 thus breaching the agreement of sale. That as a result of the breach he has filed the Originating summons. He stated that he has been in continuous occupation and uninterrupted possession of 0. 5 acres with full knowledge of the Defendant. He contends that he has consequently acquired 0. 5 acres by way of adverse possession by reason of occupation for a period of over 12 years. He posits that his portion should be excised from parcel No. LOC 20/Kambirwa/5327, a resultant subdivision of the original LOC 20/Kambirwa/545.

4. In his witness statement dated the 13/2/18 and filed in Court on the 14/2/18, the Plaintiff reiterated the contents of his supporting affidavit save that he was removed from the land in 2017 by the Defendant. That the Defendant refused to transfer to him the 0. 5 acre portion upon successful completion of succession cause in the estate of Wanjiku Njau. He states that he paid the balance of the purchase price in the sum of Kshs. 16,000/- on 8/7/97 to the Defendant. He has attached a written acknowledgement in support thereof. In addition, he stated that his claim is for transfer of 0. 5 acres purchased from the Defendant.

5. The Defendant denied the Plaintiff’s claim and deponed in his Replying affidavit sworn on the 4/9/2017 that the sale agreement is null and void for reasons that; land control board consent was not obtained; the agreement is time barred and he had no registerable interest in the suit land at time of contracting. That the land was registered in the name of the Wanjiru Njau deceased. He contended that adverse possession is inapplicable to a deceased person. He maintained that the Plaintiff occupied the land with his permission thus a claim under adverse possession is not sustainable. Referring to para 9 of the Plaintiff’s affidavit he states that the Plaintiff recognizes his title in which case adverse is not available. That the Plaintiff should have sued for breach of contract. He contends that Plaintiff’s cause of action is breach of contract as stated in para 11 of his replying affidavit. That it has nothing to do with adverse possession.

6. The Defendant further states that the Plaintiff has not established any cause of action against him for reason that he obtained the certificate of confirmation of grant on 2. 12. 2013. He attached a certified copy of the certificate of confirmation of grant issued on the 2/12/15. That the Plaintiff is not in occupation of the land having voluntarily vacated. He states that he had gratuitously offered a refund of the purchase price to the Plaintiff despite the agreement having run stale. He attached a letter dated 4/9/13 enclosing a cheque for the refund vide cheque No 107800 in the sum of Kshs 35,000/-.

7. In his written statement dated 9/2/18 and filed on the 12/2/18 he stated that the Plaintiff entered into the suit land with his permission and vacated in 2013. He contends that the Plaintiff has adverted a claim of breach of contract and should be bound by his pleadings as filed. That the suit land is now in his possession/occupation.

8. On the 9/4/18 the parties through their learned counsels on record elected to prosecute the matter by way of written submissions which I have read and considered.

9. The key issue is whether the Plaintiff has proved adverse possession and has the Plaintiff proved continuous occupation of the suit land and has he acquired title?

10. The requirements that one has to meet in order to succeed in adverse possession are set out in the case of Kimani Ruchire –v- Swift Rutherfords & Co. Ltd (1980) KLR 10 at page 16 letter B, Kneller J. held that;

“The Plaintiffs have to prove that they have used this land which they claim as of right: nec vi’ nec clam, nec precario (no force, no secrecy, no persuasion). So the Plaintiff must show that the company had knowledge (or the means of knowing actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or any endeavours to interrupt it by way of recurrent consideration.”

11. The real test in determining adverse possession is stated in the Samuel Nyakenogo v Samuel Orucho Onyaru, (2010) eKLR:

‘The Limitation of Actions Act, on adverse possession, contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession will 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 for the requisite period.”

12. Further in the case of Titus Mutuku Kasuve –vs- Mwaani Investment Ltd & Others, Civil Appeal 2004 1 KLR 184 the Court held that;

“………for an order that he be registered a proprietor in place of the registered proprietor 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.”

13. The Court of Appeal in the case of Sarah Nyambura Kungu-vs- David Njuguna, Civil Appeal No. 20 of 1988held that;

“Adverse possession only arises in case of continuous uninterrupted occupation of the land for over 12 years.”

14. Section 7 of the Limitations of Actions Act Cap 22 states that 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.

15. Section 38(1) states that 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.

16. In the instant case the commonly accepted facts are that the parties entered into an agreement of sale pursuant to which the Plaintiff got entry into the suit land in 1996. At the time of the aforesaid agreement for sale the suit land was registered in the name of Wanjiku Njau, the Defendant’s mother. Needless to say, it was mutually agreed by the parties that the Defendant would effect the transfers of the suit land to the Plaintiff once this process was complete. The grant of administration of the estate of the late Wanjiku Njau was granted to the Defendant on the 2/12/13. On 27. 10. 12, the Plaintiff wrote to him inquiring about the progress made in respect of the succession cause in order to conclude the transfer of the suit land to him. On the 4/9/13 the Defendant fired back a response graciously offering to refund the full purchase price to the Plaintiff in the sum of Kshs 35,000/- vide cheque No 107800/-. The reason given by the Defendant for demanding that he vacates the suit land was that though the Plaintiff had been in occupation of the land for 17 years since 1996, the law did not permit him to take possession of the suit land. On the 14/1/14 the Plaintiff wrote back rejecting the refunds and categorically stating that his claim is on the land.

17. It is a fact that the Plaintiff entered into the land through purchase and was put in possession in 1996. Did adverse possession start running then? If yes against whom? The registered owner Wanjiku Njau had died way back in 1986. The Defendant sold land that he had no registrable interest. The Purchase price was paid in 1997. It is clear that entry into the land was permissible. Then the question would be when did time start running for purposes of adversity of claim. Did time start running from 1997 when he completed paying the purchase price?. If that be the case, the suit was filed in 2017, 10 years later. That is less than 12 years mandatory period. The agreement was contingent to the transfer being undertaken once the succession cause was concluded. The grant was issued in 2013 in the name of the Defendant. Even if this is taken to be date upon which time started running, then the period would only be 4 years and way below that the statutory period.

18. Going by the case in Samuel Nyakenogo v Samuel Orucho Onyaru cited above, there is evidence that the Plaintiff has discontinued possession with the effect that the registered owner has regained possession of the land.

19. The Plaintiff has argued a claim of constructive trust. He posited that the Defendant all along acted and represented to the Plaintiff that he was going to obtain a proprietary interest in the land. That the Defendant is barred by the doctrine of proprietary estoppel from now declining to transfer the land to the Plaintiff. That a constructive trust relating to land subject to land control Act is enforceable and the argument by the Defendant that land control board consent was not obtained is moot. That equity should and must be raised in favour of the Plaintiff and to the extent that that equity being constructive trust and proprietary estoppel, is known, the Plaintiff should succeed in his claim. The case of Macharia Mwangi Maina & 87 others Vs Davidson Mwangi Gakiri CA 6 of 2011 is distinguishable from the facts of the case at hand. In the Macharia case the parties had been put into possession and settled there awaiting for tiles. The case dealt with possession vis a vis absence of land control board consent. The issue of adverse possession was not adverted. To the extent that the Plaintiff is now basing his claim on proprietary estoppel and constructive trust, I hold that the Plaintiff is deviating from his pleadings. Parties are bound by their pleadings and I say no more on this.

20. A claim in adverse possession is to proved by evidence. Article 159 of the Constitution does not come into the aid of the Plaintiff in this case. That is my view.

21. The totality of the evidence is that the Plaintiff has not established title by way of adverse possession. His claim fails. It is dismissed with costs to the Defendant.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 31ST DAY OF JULY, 2018.

J.G. KEMEI

JUDGE

Judgment read in open Court in the presence of;

Plaintiff – Present in person. The Advocate is absent.

Mr Kinuthia HB for Mr Mbuthia for the Defendant.

Ms.Irene and Ms Njeri, Court Assistants.