[2015] KEHC 6439 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO.52 OF 2013 (OS)

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT (CAP 22, LAWS OF KENYA)

AND

IN THE MATTER OF A CLAIM FOR ADVERSE POSSESSION PURSUANT TO SECTION 38 OF THE LIMITATIONS OF ACTIONS ACT (CAP 22, LAWS OF KENYA)

BETWEEN

TOBIAS ONYOYO OGUTU ……………………………..………………….PLAINTIFF

VERSUS

MARGARET SIMBA OKIRI …………………………………………1ST DEFENDANT

CHARLES OGWENO OGUTU……………....…………………….2ND DEFENDANT

JUDGMENT

The plaintiff brought this suit by way of originating summons dated 7th February 2013 seeking:

A declaration that the defendants right to recover land parcel No. East Karachuonyo/Kobuya/1062 measuring 1. 3 ha is barred under the Limitation of Actions Act Cap 22 Laws of Kenya and their title thereto extinguished on the grounds that the plaintiff herein has openly, peacefully and continuously been in occupation and possession of the aforesaid parcel of land for a period exceeding 12 years.

That there be an order that any registration or transfer already done regarding the land parcel No. East Karachuonyo/ Kobuya/1062 be cancelled forthwith.

That there be an order restraining the defendants by themselves, their agents, servants and employees from interfering with the plaintiff’s peaceful possession of the said land parcel No. East Karachuonyo/Kobuya/1062 measuring 1. 3ha.

That there be a declaration that the title deed for land parcel No. East Karachuonyo/Kobuya/1062 already issued to either the defendants or anybody else is null and void in so far as the said land parcel measuring 1. 3ha occupied by the plaintiff is concerned.

That there be a declaration that the register with regard to the land parcel No. East Karachuonyo/Kobuya/1062 be rectified to reflect the sole proprietor as the plaintiff having been in occupation and possession since January, 1996.

That the costs of the originating summons be borne by the defendants.

Such further and/or other orders as may be made by this honourable court as it deems fit and expedient in the circumstances of this case.

The originating summons was supported by the affidavit sworn by the plaintiff on 7th February 2013. In the said affidavit, the plaintiff deposed that one, Simeon Okiri Bolo, deceased sold to him all that parcel of land known as LR No. Karachuonyo/Kobuya/1062 (“hereinafter referred to as “the suit property”) in the year 1996 in which year he also took possession of the property. The plaintiff deposed further that while the said Simeon Okiri Bolo, deceased (hereinafter referred to only as “the deceased”) was still alive he put up his homestead on the suit property and also engaged in some agricultural activities thereon. The plaintiff claimed that on 13th February 2003, he paid to one, John Ondijo Oyieko a sum of ksh. 13,000/= being a refund of the money that the said John Ondijo Oyieko’s father had paid to the deceased for the suit property. This payment he made following agreement that was reached before the area chief on 2nd January 2003 between the plaintiff, the said John Ondijo Oyieko and the family of the deceased. The plaintiff deposed that the 1st defendant who is the widow of the deceased obtained grant of letter of administration in respect of the estate of the deceased and caused the suit property to be transferred and registered in her name on 25th October 2011. The 1st defendant thereafter caused the suit property to be transferred to the 2nd defendant on 4th October 2012.

The plaintiff has contended that the transfer of the suit property from the name of the deceased to the 1st defendant and subsequently to the 2nd defendant was meant to dispossess him of the suit property which he has occupied for over 16 years. The plaintiff has contended that he has continuously, openly and without any interruption occupied the suit property since January, 1996. The plaintiff has contended that the 1st defendant’s rights over the suit property had been extinguished by operation of law by the time she purported to transfer the suit property to the 2nd defendant. It is on account of the foregoing that the plaintiff has sought the reliefs prayed for in the originating summons. The plaintiff annexed to his application as exhibits; a copy of a note acknowledging receipt of the sum of ksh. 13,000 from the plaintiff signed by one, John Ondijo Oyieko and dated 13th February 2003, a copy of the minutes of the meeting that was held before the chief of Kobuya location on 2nd January 2003 regarding the dispute between the plaintiff and the said John Ondijo Oyieko over the suit property, copies of letters from the chief Kobuya location dated 11th May 2012 and 8th November 2012 confirming that the suit property was sold to the plaintiff by the deceased, a copy of grant of letters of administration intestate that was issued to the 1st defendant in respect of the estate of the deceased, Simeon Okiri Bolo and copies of certificates of official search on the title of the suit property dated 2nd May 2012 and 16th January 2013.

The plaintiff’s application was opposed by the defendants through separate replying affidavits sworn on 22nd February 2013. In her response to the plaintiff’s claim, the 1st defendant denied that the plaintiff entered into an agreement for sale with the deceased with respect to the suit property as claimed or at all. The 1st defendant denied further that the plaintiff is in occupation of the suit property. The 1st defendant deposed that the plaintiff has never entered or taken possession of the suit property or any portion thereof and that the alleged entry into the suit property by the plaintiff is not true. The 1st defendant denied that the plaintiff has acquired the title of the suit property by adverse possession. The 1st defendant contended further that the plaintiff’s claim over the suit property on account of adverse possession is misplaced in that the plaintiff had filed an application for revocation of the grant of letters of administration in respect of the estate of the deceased that was issued to the 1st defendant on the ground that he is a beneficiary of the estate of the deceased. The 1st defendant contended that if the plaintiff is a beneficiary of the estate of the deceased then he cannot acquire any property of the deceased by adverse possession; his possession of such property being on account of his status as a beneficiary. The 1st defendant contended that the suit property was at all material times registered in the name of the deceased and that upon obtaining a grant of letters of administration of the estate of the deceased, she sold and transferred the property to the 2nd defendant. The 1st defendant has contended that the sale and transfer of the suit property to the 2nd defendant was lawfully carried out. The 1st defendant annexed to her affidavit as exhibits; photocopies of the application that the plaintiff had filed for revocation of the grant of letters of administration that was issued to her, the affidavits that the plaintiff had filed in support of that application and her affidavit in response.

In his replying affidavit, the 2nd defendant contended that the sale and transfer of the suit property by the 1st defendant to him was lawful. The 2nd defendant deposed that before he entered into agreement for sale with the 1st defendant he visited the suit property and ascertained that it was vacant. He also carried an official search on the title of the said property which confirmed that the same was registered in the name of the 1st defendant as the proprietor thereof. The 2nd defendant deposed that after the suit property was sold and transferred to him, he took possession thereof and he has remained in possession to date. The 2nd defendant has termed the plaintiff’s claim over the suit property as pre-mature misconceived and legally untenable. The 2nd defendant annexed to his affidavit as exhibits, copies of certificates of official search on the title of the suit property dated 16th January 2013 and 2nd October 2011.

When the originating summons came up for directions on 30th May 2013, the parties agreed that the same be heard through affidavit evidence and that the parties do make submissions on the application in writing. Following these directions, the defendants filed their written submissions on 20th August 2014 while the plaintiff did so on 5th December 2014. I have considered the plaintiff’s application together with the affidavit filed in support thereof. I have also considered the affidavits filed by the defendants in opposition to the application. Finally, I have considered the parties’ respective submissions and the case law cited in support thereof. There is only one issue for determination in this suit namely, whether the plaintiff has acquired proprietary interest in the suit property by adverse possession. In the case of Kasure –vs- Mwani Investments Ltd and Others [2004] 1 E. A. 82 (CA), it was held that;

“Any person who claims to have been entitled to land by adverse possession may apply to the High Court for an order that he be registered as the proprietor of the land. 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 dispossession the owner or after the discontinuation of possession by the owner of his own volition Wanje –vs- Saikwa (No. 2) [1984] KLR 284 followed. The mere change of ownership of the land which is occupied by another under adverse possession does not interrupt such person’s adverse possession (Githu –vs- Ndete [1984] KLR 776 followed.”

The onus was upon the plaintiff to prove on a balance of probability that he has been in exclusive possession of the suit openly and continuously for 12 years. The plaintiff has claimed that he entered into possession of the suit property in January, 1996 after the same was sold to him by the deceased, Simeon Okiri Bolo. The plaintiff has claimed further that upon taking possession of the suit property, he set up his homestead thereon and he has also been carrying out agricultural activities on a portion thereof. The defendants have denied the plaintiff’s claim that the suit property was sold to him by the deceased. The defendants have also denied that the plaintiff has at any one time been in possession of the suit property. The 2nd defendant has contended that before he purchased the suit property from the 1st defendant he inspected the suit property and found it vacant. The 2nd defendant contended that upon transfer of the suit property to him, he took possession thereof and he has remained in such possession to date. The defendants stated in their affidavits that the plaintiff had not placed any evidence before the court in proof of his possession of the suit property. The plaintiff did not file a supplementary or further affidavit in response to the averments in the defendants’ affidavits regarding the status of the suit property more particularly whether the same was occupied by the plaintiff or the 2nd defendant.

I am in agreement with the submissions by the defendants that on the material before the court, it is not clear as to when the plaintiff entered the suit property if at all he did. On one hand, the plaintiff has claimed that he entered into the suit property in the year 1996 after he purchased the same from the deceased. On the other hand, the plaintiff has claimed that he made a refund of kshs. 13,000/= on 13th February 2003 to one, John Ondijo Oyieko whose father had purchased the property from the deceased. It is not clear therefore whether the plaintiff purchased the property from the deceased in the year 1996 or from John Ondijo Oyieko in the year 2003 after the death of the deceased who died on 5th September 1996. In his affidavit sworn on 2nd July 2012 in support of his application for revocation of grant of letters of administration that was issued to the 1st defendant, the plaintiff stated in paragraph 4 thereof that he paid kshs. 13,000/= for the suit property. A copy of the acknowledgement of receipt of the said payment that was attached to the said affidavit as “T001” and which is attached to the affidavit in support of the present application as “T001(a)” shows that the payment was made on 13th February 2003 to one, John Ondijo Oyieko. The letter dated 11th May 2012 from the chief Kobuya location which is addressed “to whom it may concern” which is attached to the plaintiff’s affidavit filed herein as exhibit “T003(a)” also indicates that the plaintiff purchased the suit property on “2nd day of January, 2003”).

From the foregoing, it is not certain as to when the plaintiff purchased the suit property and from whom. Since the date of the purchase of the suit property by the plaintiff is not certain, the same uncerternity clouds his date of occupation or entry if at all in the suit property assuming that such entry could only have taken place following the purchase of the property. That said, the plaintiff’s claim is not based on the agreement for sale that he entered into with the deceased. It is for adverse possession. The agreement for sale that I have discussed at length above would only be a pointer as to when if at all the plaintiff entered and took possession of the suit property. Leaving the said agreements aside, the plaintiff had to prove his actual possession of the suit property. The plaintiff who has claimed that he entered the suit property in 1996 and set up his homestead thereon in addition to carrying out agricultural activities on the same did not place any evidence before the court to prove his occupation of the suit property. There is no evidence before me of any homestead or agricultural undertakings on the suit property. The plaintiff did not produce such evidence even after being challenged expressly by the defendants in their replying affidavit to do so.

In the absence of any evidence of the plaintiff’s occupation of the suit property, I am inclined to agree with the defendants that the plaintiff has not been in occupation of the suit property. The 2nd defendant’s contention that he purchased the suit property in vacant possession has not been challenged by the plaintiff. I don’t think that the 2nd defendant would have purchased the suit property if the plaintiffs homestead was situated thereon. The plaintiff has not claimed that there has been an attempt to evict him from the suit property. From the totality of the foregoing, I am not satisfied that the plaintiff is in occupation of the suit property and that he has had such occupation for 12 years.

The upshot of the foregoing is that the plaintiff has failed to prove his case against the defendants on a balance of probability. The Originating Summons dated 7th February 2013 has no merit. The same is dismissed with costs to the defendants.

Delivered, signedanddatedatKISIIthis13th dayof February, 2015.

S. OKONG’O

JUDGE

In the presence of:-

Mr. Bunde for the plaintiff

Mr. Bigogo h/b for Oguttu for the defendants

Mr. Mobisa Court Clerk

S. OKONG’O

JUDGE