[2023] KEELC 21284 (KLR)

(Suing as the administrator of the Estate of Joseph Thagichu Muhia (Deceased) v Manyore (now substituted with Manyore Kuria Manyore) (Environment & Land Case E006 of 2021) [2023] KEELC 21284 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21284 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case E006 of 2021

JG Kemei, J

November 2, 2023

Between

Emily Mwihaki Thagichu (Suing as the administrator of the Estate of Joseph Thagichu Muhia (Deceased)

Plaintiff

and

Kuria Manyore (now substituted with Manyore Kuria Manyore)

Defendant

Judgment

1. The Applicant Emily Mwihaki Thagichu suing as an administrator of the estate of Joseph Thagichu Muhia, deceased moved the Court vide the Originating Summons filed on 16/2/2021 seeking the following orders:-a.Spent.b.Spent.c.The Plaintiff is entitled to the suit land by adverse possession for the estate of Joseph Thagichu Muhia.d.The Defendant fraudulently and stealthily caused the suit land to be registered in his name in 1979 with the knowledge that the Plaintiff’s father had purchased it in 1964. e.That the Defendant be ordered to execute the transfer in respect of the suit land in favour of the Plaintiff.f.In default the Deputy Registrar to be ordered to execute the transfer and dispense with the production of the original title in the name of the Defendant.g.Costs of the suit.

2. The Defendant has resisted the claim of the Plaintiff vide Replying Affidavit sworn on 15/4/2021. He stated that he became registered as owner of the land in 1959. That the late James Manyore had no capacity to enter into any agreement with the Plaintiff’s father to sell the suit land. That the suit land is vacant and not occupied by Plaintiff or her brother Henry Thagichu. He denied any fraud in the manner he acquired the land.

3. At the hearing PW1 Emily Mwihaki Thagichu testified and stated that she is the daughter and administrator of the estate of Joseph Thagichu Muhia who passed away. She relied on her Supporting Affidavit on page 6-17 of the trial bundle as evidence in chief. She produced documents marked as PEX No. 1.

4. She stated that her late father purchased the land from James Gichango Manyore, the brother of the Defendant in 1964.

5. That she was born in 1977 and therefore not present when the transaction took place.

6. That her brother Henry Njoroge was charged in Gatundu Court for trespassing on the suit land.

7. PW2 – Henry Njoroge Thagichu relied on his witness statement dated 12/5/2022 and added that his parents have been cultivating the land. That he was born in 1972 and therefore was not present during the transaction.

8. That his family lives near the suit land and that they have not constructed any house on the land but use the land for cultivation only. That the Defendant erected a fence in 2002.

9. PW3 – Beatrice Nyokabi M. Gachugu relied on her witness statement dated 13/4/2021 in evidence in chief. She stated that she was born in 1948. That the Plaintiff’s father purchased the land in 1964. That she got married and found them cultivating on the land though they have never built on it.

10. PW4 - George Kimani Kinoo testified and relied on witness statement dated 18/4/2021 as evidence in chief. He had stated that he knew that the land was being cultivated by the family of the Plaintiffs.

11. PW5 – Joseph Githigi Mwatha stated that he knew the Plaintiff’s father and the plot since 1972. That it is the family of the Plaintiff who has been utilizing the land. That John Muhia died in 2012. In cross he stated that he cannot say anything on who was occupying the land.

12. PW6 - Joseph Njuguna Gaturu stated that he knew the parties to the suit. That the family of Thagichu have been cultivating the land from 1975 to date. That he was not a witness to the transaction.

13. DW1 – Manyore Kuria Manyore stated that he is the son of Kuria Manyore. That he is the guardian and manager of the estate of Kuria Manyore who suffers from Stroke. He relied on his Replying Affidavit and witness statement dated 27/4/2022. That his father was born in 1943 and in 1959 he was 16 years old.

14. On fraud the witness informed the Court that he was not aware of any fraud on the part of his father. That he has never been charged with fraud. That he does not know the history of the land as he was born in 1973.

15. DW2 - John Manyore Gitoho stated that Kuria Manyore is his uncle. That the Defendant fenced the land in 2002 but was destroyed by unknown persons. He stated that Kabiru the son of James Gitangu Manyore cultivated the land until his death in 1994.

16. Parties filed written submissions which I have read and considered.

17. Having considered the originating summons, the Respondents’ response thereto, the evidence adduced at the hearing and all the material placed before the court the key issue for determination is whether the Applicant is entitled to the orders of title by way of adverse possession.

18. The essence of adverse possession under the Limitation of Actions Act, Cap 22 Laws of Kenya, is that the registered proprietor of land is prohibited from bringing an action to recover land after 12 years from the date when the cause of action accrued. Upon the expiry of that period the proprietor’s title to the land is extinguished by operation of the law and any person who has been in occupation of the land peacefully, openly and as of right for the prescribed period is entitled to bring an action in the High Court to be declared the owner of the land. The relevant provisions are Sections 7, 13 and 38 of the Limitations of Actions Act.

19. In the case of Kimani Ruchine Vs. Swift Rutherford & Co. Ltd (1980) KLR 10 as per Kneller J. stating:“… 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, secrecy or persuasion) ... show that the Company had knowledge of possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or any endeavors to interrupt it or by way of recurrent consideration.”

20. It is the case of the Applicant that her deceased father purchased land from the brother of the Defendant in 1964, paid the full purchase price and took possession of the land which possession he has todate. That the Defendant registered the land in his name through fraud. I have held before in other cases that fraud negates the claim of adverse possession. This is because in adverse the claimant is first and foremost recognizing the title of the registered owner of the land and depending on the circumstances seeks to have the title declared extinguished by operation of law and registered in his name. A claimant who claims both adverse as well as impugning the title of the paper owner is destined to fail in his quest.

21. It is not in dispute that the suit land was registered in the name of Kuria Manyore on the 11/4/1959. It is also on record that the Defendant lodged a caution on the title claiming a licencees interest. A licensee title denotes that the claimant is occupying the land with the permission or licence of the owner. In the case of Malcom Bell Vs. Daniel Toroitich Arap Moi & Another [2012] eKLR the Court of Appeal held that a claim in adverse possession could not be sustained as the Respondents had come into possession of the property through the permission of the deceased father of the Appellant.

22. The Applicant led evidence that the land was sold by the Defendant’s brother to his father in 1964. None of the witnesses were present to the alleged sale. Moreover evidence was led that the Defendant was away in the United States of America for studies and later work. If there was any occupation which has not been proved, the same cannot constitute adversity in the absence of evidence that the Defendant had knowledge of the same. The possession must be notorious, open and exclusive in the face of the title holder who despite knowledge fails to advert his title by removing the adverse possessor or file suit.

23. With respect to occupation the Defendants led evidence that they live on their land next door and have been cultivating the suit land since 1964. There was no evidence placed before the court to support the averment. Possession of an adverse nature has not been proven.

24. In the end I find that the Plaintiff has not proven her case. It is dismissed with costs in favour of the Defendant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 2NDDAY OF NOVEMBER, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Kamata for PlaintiffMunene for DefendantCourt AssistantS – Lilian/Mercy