[2023] KEELC 21161 (KLR)

Shiramba v Sakayo & another (Environment & Land Case 87 of 2018) [2023] KEELC 21161 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21161 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment & Land Case 87 of 2018

DO Ohungo, J

October 31, 2023

Between

Hana Inamani Shiramba

Plaintiff

and

Samuel Lichoti Sakayo

1st Defendant

Godfrey Joseph Mwayuli

2nd Defendant

Judgment

1. By originating summons (OS) dated 26th November 2018 the plaintiff/applicant sought to be declared the proprietor of the parcel of land known as Kakamega/Virembe/526 (the suit property) by way of adverse possession.

2. The OS was supported by an affidavit sworn by the applicant who deposed that the first respondent is her brother in law and that her deceased husband and the first respondent had ancestral land at Shiabwali area comprising of land parcel number Kakamega/Virembe/463. That before her husband passed on, the first respondent exchanged the suit property which was his parcel of land with her husband’s share of the inheritance in land parcel number Kakamega/Virembe/463 through a written agreement upon which her family settled on the suit property since 1973 and developed it by planting trees and building a permanent house therein.

3. She further deposed that in January 2018, the first respondent manifested an intention to disinherit her and chase her away from the suit property and that she reported the matter to the Deputy County Commissioner. She added that a meeting was then held in the Deputy County Commissioner’s office on 8th May 2018 in her absence during which a decision was made to evict her from the suit property. She also stated that by the time the decision was made, the first respondent had disposed of the suit property to the second respondent without her consent. That the first respondent thereafter engaged in acts of wanton destruction of her property and using the police to harass her and her family and even having her son charged in court.

4. The second respondent opposed the originating summons through a replying affidavit sworn on 28th December 2018 wherein he deposed that he was the registered owner of the suit property which he acquired for valuable consideration from the first respondent who was the previous registered proprietor. He denied the applicant’s allegations and added that the applicant had made several complaints to various offices but had failed to attend whenever summoned to meetings. He deposed that the applicant is a trespasser and counterclaimed for her eviction and a permanent injunction to restrain her, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the suit property.

5. The OS was heard by way of viva voce evidence.

6. At the hearing, the plaintiff/applicant adopted her aforesaid supporting affidavit as evidence. She further testified that her husband passed way in 1978 and was buried elsewhere in Lirhanda at his mother’s home. The plaintiff’s case was then closed.

7. The second respondent/defendant testified as DW1 and adopted his witness statement as his evidence. He stated in the statement that he purchased the suit property from the first respondent on 5th April 2018 and that it was transferred to him, and he became the registered proprietor. That he took immediate possession and that the plaintiff had refused to vacate. He went on to state that he inspected the land prior to purchasing it and saw on it houses belonging to the plaintiff. He further confirmed that he had the plaintiff’s son charged with a criminal offence, but he was acquitted. That after that, he got the plaintiff and her son arrested again and charged with damaging his trees. He stated that the criminal case was ongoing as of the date of his testimony.

8. The first respondent/defendant testified as DW2 and adopted his witness statement dated 3rd December 2019 as his evidence. He stated that he sold the suit property to the second respondent and transferred it to him. That he was residing on land parcel number Kakamega/Virembe/463 as of the date of his testimony and that the plaintiff’s late husband who was his younger brother was buried on his own land in Lirhanda. That the suit property was originally owned by his father who transferred it to him while still alive and that he later sold it to the second respondent. He further stated that when the plaintiff’s husband passed away, she moved with her children from the land where her husband was buried since she had separated from her husband. That he allowed her to occupy the suit property since he did not want them to suffer and added that she was only to remain on the suit property long enough to raise her children and that she was to return to her land once her children became of age. He went on to state that the plaintiff has buried two of her children on the suit property and that the plaintiff’s late husband built for the plaintiff a small house on the suit property. That the plaintiff could not live on land parcel number Kakamega/Virembe/463 because she slapped their mother (her mother in law).

9. Other defence witnesses were Hudson Manyengo Ilusa (DW3) and Margarita Khasungu Lijodi (DW4). DW3 stated that the plaintiff’s late husband was his father’s younger brother and that the plaintiff had lived on the suit property for 40 years. That the plaintiff should go live on land parcel number Kakamega/Virembe/463 where her husband had a share. DW4 stated that the first respondent is her husband and reiterated that he sold the suit property to the second respondent.

10. The defence case was then closed. Parties thereafter filed and exchanged written submissions. I have considered the parties’ respective pleadings, evidence, and submissions. The issues that arise for determination are whether adverse possession has been established and whether the reliefs sought should issue.

11. The law on adverse possession is settled. As the Court of Appeal stated in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, the party claiming adverse possession must assert hostile title in denial of the title of the registered proprietor. The process must start with a wrongful dispossession of the rightful owner and the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. The party who claims adverse possession must demonstrate the date he came into possession, the nature of his possession, whether the fact of his possession was known to the registered proprietor and that the possession was open and undisturbed for the requisite 12 years.

12. There is no dispute that the second defendant is the registered proprietor of the suit property. That much is apparent from the copy of the title deed dated 27th July 2018 and the certificate of official search dated 12th October 2018. The previous registered proprietor was the first respondent.

13. The plaintiff’s case is that she entered the suit property in 1973 following an exchange between her late husband and the first respondent. Thus, her entry into the suit property was by permission of the first respondent who was then the registered proprietor. Possession by licence of the proprietor is antithetical to the doctrine of adverse possession. For time to start running in favour of the party claiming adverse possession following entry by permission of the proprietor, the claimant must demonstrate the point in time at which she started to assert hostile title in denial of the title of the registered proprietor.

14. Although there is no dispute that the plaintiff has had possession for 40 years, it must be reiterated that the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. In view of the manner in which she entered the suit property, the plaintiff did not prove that she had dispossessed the defendants or that the defendants had discontinued possession for the statutory period of 12 years. In fact, she did not offer any evidence to prove that the exchange was completed, and that the first respondent became the registered proprietor of the land that her deceased husband offered in the exchange. For purposes of adverse possession, an exchange is similar to a sale transaction. Time will only start running in favour of the plaintiff from the moment of registration of transfer of the exchanged property in favour of the defendant. That is the point at which her possession and occupation of the property ceases to be by permission of the registered proprietor. As the Court of Appeal emphasised in Samuel Kihamba v Mary Mbaisi [2015] eKLR, occupation of land by consent or license does not accrue any right of adverse possession. Consequently, the plaintiff has failed to establish adverse possession. She is not entitled to the reliefs that she sought.

15. The second defendant included a counterclaim at paragraphs 14 to 16 of his replying affidavit. He prayed for judgment against the plaintiff for her eviction and a permanent injunction to restrain her, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the suit property.

16. As noted earlier, there is no dispute that the second defendant is the registered proprietor of the suit property. A registered proprietor of land is entitled to the rights, privileges, and benefits under Article 40 of the Constitution of Kenya 2010 and Section 24 of the Land Registration Act. Among other rights, he is entitled to possession of the suit property and peaceful use thereof. Consequently, the reliefs of eviction and permanent injunction are merited.

17. As I conclude, I note that the plaintiff and the first defendant are close relatives. The plaintiff is his sister in law. There is no dispute that the plaintiff’s late husband had a share in land parcel number Kakamega/Virembe/463. The plaintiff and the first defendant, and indeed the wider extended family should foster peaceful family coexistence. Notwithstanding any challenges that exist, and challenges are normal in families, the plaintiff should be allowed to settle in her husband’s share of land parcel number Kakamega/Virembe/463. Needless to state, the family should endeavour to lawfully resolve any issues of succession in regard to land parcel number Kakamega/Virembe/463 before the appropriate court with jurisdiction in the matter.

18. In view of the foregoing, I make the following orders:a.The plaintiff/applicant’s case is dismissed.b.The plaintiff to vacate from the parcel of land known as Kakamega/Virembe/526 within 90 (ninety) days from the date of delivery of this judgment. In default, an eviction order shall automatically issue.c.A permanent injunction is hereby issued to restrain the plaintiff, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the parcel of land known as Kakamega/Virembe/526. d.The injunction in (c) above will come into operation within 90 (ninety) days from the date of delivery of this judgment or upon the plaintiff vacating, whichever occurs earlier.e.Considering the relationship between the parties, I make no order as to costs.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 31ST DAY OF OCTOBER 2023. D. O. OHUNGOJUDGE