REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYAHURURU

ELC NO. 358 OF 2017

PAUL KAGIA KUNGU.......................................................................................... PLAINTIFF

-VERSUS-

BIDAN KAMAU WAIGANJO.....................................................................1^ST DEFENDANT

PAUL KUNGU WAIGANJO.......................................................................2^ND DEFENDANT

JOHN MUREITHI WAIGANJO...............................................................3^RD DEFENDANT

EUNICE WANJIRU WAINAINA..............................................................4^TH DEFENDANT

(BY ORIGINAL ACTION)

[CONSOLIDATED WITH ELC CASE NO. 364 OF 2017 (OS)]

GABRIEL WAIGANJO KUNGU.................................................................1^ST DEFENDANT

CHRISTOPHER WAIGANJO KUNGU.....................................................2^ND DEFENDANT

HANNAH WANJIKU WAIGANJO.............................................................3^RD DEFENDANT

-VERSUS-

PAUL KAGIA KUNGU..........................................................................................PLAINTIFF

(BY COUNTER-CLAIM)

JUDGMENT

A. INTRODUCTION

1. This is a judgment with respect to two consolidated suits.  The first is  the Plaintiff’s suit in  Nyahururu ELC No. 358 of 2017 which sought  to  assert his property rights over the suit property. The second is  Nyahururu  ELC  No. 364 of 2017 (O.S) whereby the Defendants  sought  a  declaration of trust and alternative claim for adverse  possession over  the suit property.  The two suits were consolidated  and directions given to the effect that the Plaintiff’s claim shall be  treated as the main suit whereas the Defendants’ originating   summons shall be treated as the counter-claim.

B. THE PLAINTIFF’S CLAIM

2. By a plaint dated 20^th April, 2017, the Plaintiff pleaded that he was  the registered proprietor of Title No. Laikipia/Ndindika/294 (the suit  property).  He further pleaded that on 19^th August, 2016, the  Defendants had unlawfully buried the remains of their late father  Stephen Waiganjo in the suit property with a view to defeating his  interest therein.  It was further pleaded that in violation of the  Plaintiff’s proprietary rights, the Defendants had also ploughed  the  suit property with a view to planting crops thereon.

3. As a result of the said matters the Plaintiff sought the following  reliefs against the Defendants.

(a) A declaration that the Plaintiff is the sole proprietor of Land  Reference No. Laikipia/Ndindika/294, that neither the  Defendants nor the deceased father has an interest in it  whatsoever and that the Defendants have actually trespassed the  Plaintiff’s land by ploughing it and interring their deceased father  therein.

(b) An order directing the Defendants to exhume the remains of their  deceased father Stephen Waiganjo  Miring’u interred in the suit  land failure to which the Plaintiff be at liberty to exhume the said  remains at the cost of the Defendants.

(c) An order of permanent injunction, restraining the Defendants, their  family members, representatives, employees, servants, agents and  anyone else acting for, on behalf of, through or at the behest  direction or instructions of the Defendants, from entering,  occupying, cultivating, digging a grave into and/or interring the  remains and/or body of anybody else into LR. No  Laikipia/Ndindika/294 measuring approximately 3.0 ha.

(d) That an inquiry  be made as to the amount of mesne profits which  have accrued due to the Defendants’ illegal cultivation of the suit  land prior to the institution of the suit until the delivery of vacant  possession to the Plaintiff and the Defendants be ordered to pay to  the Plaintiff the resultant  amount of mesne profits and/or general  damages for trespass with interest at court’s rate.

(e) Costs of this suit and interest thereon.

C. THE DEFENDANTS’ DEFENCE

4. The record shows that by a joint statement of defence dated and  filed on 8^th June, 2017 of defence dated and filed on 8^th June, 2017  the Defendants admitted that the Plaintiff was the registered  proprietor of the suit property but pleaded that he was registered as  such in trust for himself and other members of the larger family of  Kungu Waiganjo (Waiganjo) which included the Defendants.  The  Defendants pleaded that the body of the late Stephen Waiganjo  (Stephen) was lawfully buried on the suit property as a member of  the family of the late Waiganjo and not as a means of defeating the  Plaintiff’s interest in the suit property.

5. The Defendants further pleaded that Plaintiff’s action was time- barred under the Limitation of Actions Act (Cap. 22) and that they had  acquired prescriptive rights over the suit property by virtue of having  been in occupation and use  thereof for a period exceeding 12  years.  The Defendants consequently prayed for dismissal of the  Plaintiff’s suit with costs.

D. THE DEFENDANTS’ COUNTER CLAIM

6. The record shows that vide an originating summons dated 5^th May,  2017 based upon Sections 7 and 38 of the Limitation of Actions Act,  Order 37 Rule 7 of the Civil Procedure Rules, 2010 and all other  enabling provisions of the law, the Claimant sought the following  reliefs:

(a) The  declaration that the Defendant is registered as  proprietor of  Title No. Laikipia/Ndindika/294  measuring 3.0  hectares in trust of himself and the Plaintiffs in equal shares.

(b) An order for dissolution of the said trust and transfer of the  Plaintiff’ entitlement out of Title No. Laikipia/Ndindika/294  by  the Defendant and in default, the honourable court’s Deputy  Regitrar do execute all the necessary instruments to effect  sub-division and transfer thereof in favour of the Plaintiffs.

(c) Alternatively  and without prejudice to Prayer 1 above, there be  a declaration that the 3^rd Plaintiff is entitled to be registered as  proprietor of three(3) acres out of Title No.  Laikipia/Ndindika/294  by way of adverse possession

(d) Costs of the application be awarded to the Plaintiffs.

7. The said summons was supported by 3 affidavits sworn by the  respective Applicants i.e. Gabriel Waiganjo Kungu, Christopher  Waiganjo Kungu and Hannah Wanjiku Waiganjo.  It was contended  that the Plaintiff in the main suit had acquired the suit property from  her mother Martha Wanjiku Kungu (Martha) subject to a trust  created vide Nyahururu D.M.C Land Succession Cause No. 8 of  1979.  It  was  further pleaded that they had occupied a portion of  3 acres out of the suit property for over 12 years without any  interruption by the Plaintiff  hence they had acquired adverse  possession thereof under the law of Limitation of Actions. It was the  Defendant’s contention that during his lifetime, Waiganjo had  declared that the suit property should  benefit all his 3 wives.

8. By reason of the pre-trial directions given in the consolidated suits,  the Defendants’ claim for adverse possession was deemed to be  disputed  by the Plaintiff and the Plaintiff’s claim was to be treated as  the main suit whereas the Defendant’s originating summons was to  be treated as the counter-claim in the matter.

E. SUMMARY OF EVIDENCE AT THE TRIAL

(a) The Plaintiff’s evidence

9. The Plaintiff testified at the trial as the sole witness.  His evidence  was that he acquired the suit property from Martha as a gift in 1989  and later on got registered as absolute proprietor.  He stated that  neither Martha nor himself ever held the suit property in trust for the  larger family of Waiganjo.  It was his evidence that even though  Waiganjo  had 3 wives, each wife had settled on her own distinct  and separate parcel of land.  He contended that Martha was awarded  the suit property as her own in Land Succession Cause No 8.  of 1979  since the other wives of Waiganjo had their own land elsewhere.

10. On the claim for adverse possession although the Plaintiff conceded  that the family of Stephen was residing on a portion of the suit  property, he claimed that they were occupying it by force.  He further  conceded that they had been on the suit property for more than 12  years and that they utilized more than 2 ½ acres of the suit property.

(b) The Defendants’ evidence

11. The Defendants called 3 witnesses at the trial.  The net effect of their  evidence was that the suit property originally belonged to Waiganjo  who had three (3) wives during his life time.  It was their evidence  that upon his demise, the Plaintiff’s mother (Martha) was registered  as a trustee for the extended family but that she secretly transferred  the entire land to the Plaintiff without the consent of the other  beneficiaries.  The Defendants maintained that the verdict in DMS  Land Succession Cause No. 8 of 1979 was to the effect that Martha  was to be registered on behalf of the larger Waiganjo family.

12. At the trial, it emerged that the Defendants in the main suit are all  children of Stephen and that they had been residing on a portion of  the suit property for several decades.  It also emerged that the 1^st  and  2^nd claimants in the originating summons were not ordinarily  resident on the suit property but it was the 3^rd claimant, Hannah  Waiganjo, and her children who were resident there. Hannah  Waiganjo was the wife of Stephen.

F. DIRECTIONS ON SUBMISSIONS

13. Upon conclusion of the hearing , the parties were given timelines  within which to file and exchange their submissions.  The record  shows that the Plaintiff filed his submissions on 27^th October, 2021  whereas the Defendants’ submissions were not on record by the time  of preparation of the judgment.

G. THE ISSUES FOR DETERMINATION

14. The court has considered the pleadings, evidence and documents on  record and is of the opinion that the following issues arise for  determination in the suit and counter claim:

(a) Whether the Plaintiff was registered as proprietor of the  suit property subject to a family trust.

(b) Whether the Plaintiff’s suit is statute-barred under the  Limitation of Actions Act.

(c) Whether the claimants in the originating summons have  proved their claim for adverse possession.

(d) Whether the Plaintiff is entitled to the reliefs sought in the  suit.

(e) Whether the Defendants are entitled to the reliefs sought  in the originating summons.

(f) Who shall bear the costs of the suit and counter-claim.

H. ANALYSIS AND DETERMINATION

 (a) Whether the Plaintiff was registered as proprietor of the  suit    property subject to a family trust

15. The court has considered the submissions and material on record on  this issue.  The court has carefully considered the decision of the  Court in Nyahururu DMS’ Land Succession Cause No. 8 of 1979 with  regard to Plot. No 127. A perusal  of the ruling as a whole  indicates that the court upon hearing the concerned parties found  as a matter of fact that Waiganjo had 3 wives.  The court further  found that Martha was the one in occupation thereof and that the  other two wives had settled on their own plots elsewhere.

16. The court also appeared to have accepted that it was Waiganjo’s  wish that the suit property should be given to Martha upon his  demise.  Accordingly, the court ruled that the suit property  should be registered in the name of Martha who was the Plaintiff’s  mother.  There was no indication that Martha was to hold it in trust  for any of the family members of Waiganjo since the court was  satisfied that the other 2 wives had been taken care of.  The court is,  therefore, unable to accept the Defendant’s claim that the suit  property was subject to any family trust since there is no evidence on  record to demonstrate the alleged trust.  The suit property was given  to Martha absolutely and there is no indication on record to  demonstrate that any of the family members challenged the court’s  decision either by way of appeal or review.

 (b) Whether the Plaintiff’s suit is statute-barred under the law of    Limitation of Actions Act

17. This issue was raised by the Defendants in their joint statement of  defence.  Whereas the Defendants contended that the Plaintiff had  lost his right to recover the suit property by reason of effluxion of  time, the Plaintiff contended that he had made various attempts to  remove the Defendants from the suit property without success.  He  submitted that he had even issued demand letters but the  Defendants had refused to vacate the suit property.

18. Section 7 of the Limitation of Actions Act (Cap. 22) stipulates 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.”

19. The Plaintiff’s evidence on record is that he acquired the suit property  in 1983 as a gift from Martha.  The record further shows that the  consent of the Land Control Board for the transaction was granted in  1984 while the suit property was still in the name of Settlement Fund  Trustees. It is evident from the record that in exercise of his  proprietary rights the Plaintiff filed Nyahururu SPMCC No. 229 of 1991  – Paul Kagia v Stephen Waiganjo  seeking the eviction of Stephen (the  Defendants’ father in ELC No. 358 of 2017) from the suit property.  Earlier  on, he had filed Nyahururu SRMCC of 79 of 1989 – Paul Kagia Kungu v  Hannah Wanjiku Waiganjo to vindicate his property rights.

20. It would appear to the court that the Plaintiff’s right of action accrued  at the earliest in 1983 and at the latest in 1989.  The record shows  that SRMCC No. 79 of 1989 was concluded by adoption of the Elders’  Award on or about 18^th June, 1991 whereas SRMCC No 229 of 1991  was concluded on 12^th March, 1992.  The latter suit was found to  have been res judicata  by the trial court hence it was dismissed.

21. The court is thus of the opinion that by the time the Plaintiff filed the  plaint dated 20^th April, 2017, he was already statute-barred under  Section 7 of the Limitation of Actions Act since his right of action  accrued in either 1989 or 1991.  Even if the Plaintiff were to reckon  that a new cause of action for recovery of the suit property accrued  in 1992 after dismissal of his suit in SPMCC No.229 of 1991 then the 12  year period for recovery must have lapsed on or about 11^th March,  2004.  The court, therefore, finds and holds that the Plaintiff’s suit is  time-barred under the law.

22. The court is of the opinion that there is another reason why the  Plaintiff’s suit ought to fail.  The material on record shows that vide  Nyahururu SRMCC No. 79 of 1989, the Plaintiff sued the mother of the  Defendants (Hannah Waiganjo) seeking her eviction from the suit  property. He did not succeed in obtaining an eviction order.  In 1991  he then filed SPMCC No. 229 of 1991 against Stephen, the father  of the Defendants seeking his eviction from the suit property.  The  suit was ultimately struck out as res judicata on 12^th March , 1992.   So, if SRMCC No. 229 of 1991 for recovery of the suit property was res  judicata  then afortiori  the instant suit for recovery of the suit  property is an abuse of the court process.

 (c) Whether the claimants in the originating summons have proved   their claim for adverse possession

23. The court has considered the material and submissions on record on  this issue. Whereas the Defendants contended that they had proved  adverse possession of at least 3 acres out of the suit property, the  Plaintiff contended otherwise.  It was the Defendants’ evidence that  they were brought up on the suit property but the Plaintiff disputed  this and claimed that they had never occupied or cultivated the suit  property prior to the filing of the suit and originating summons for  adverse possession.  During his evidence at the trial, however, the  Plaintiff conceded that the Defendants were in possession of a  portion of the suit property but claimed that they were in occupation  by force.

24. The elements of adverse possession were restated in the following  cases: Wambugu v Njuguna [1983] KLR 172; Githu v Ndeete [1984]  KLR 776; and  Kasuve v Mwaani Investments Ltd and 4 Others [2004]  1KLR 184. In the case of Kasuve v Mwaani Investment Ltd (supra)  the elements of adverse possession were summarized as follows:

“…and in order to be entitled to 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 dispossession of the owner or by the discontinuation of possession by the owner on his own volition, Wanja v Sakwa No. 2 [1984] KLR 284.  A title by adverse possession can be acquired under the Limitation of Actions Act for part of the land…”

25. The court is satisfied from the evidence on record that Stephen and  his family members have been in occupation of the suit property for  several decades.  The court is satisfied that the Defendants in the  suit  and the 3^rd Plaintiff in the originating summons (Hannah  Waiganjo)   have all along resided on a portion of the suit property.   In fact, the Plaintiff conceded during cross examination that they  were cultivating  more than 2 ½ acres of the suit property.

26. The court is further satisfied that the occupation by Hannah and her  children was adverse at least with effect from 1989 or 1991 when  the Plaintiff filed the previous suits for recovery of the suit property.   The action of filing the suits clearly indicated that whatever  permission or licence which may have been granted earlier was  terminated.  Accordingly, the Defendants’ continued occupation  after conclusion of those suits constituted adverse possession.  As  indicated before, the limitation period began to run at the latest in  March 1992 when SRMCC No 229 of 1991 was concluded.  It would,  therefore, follow that the statutory period of 12 years expired by  March, 2004.

27. Although the Plaintiff claimed that the Defendants were occupying  and cultivating the suit property by force, there is no credible  evidence on record to demonstrate that their entry or occupation was  through force.  On the contrary, the evidence on record shows that  Stephen was invited by the late Waiganjo into the suit property  during his life time. The mere fact that the Plaintiff later on acquired  ownership of the suit property and asked the Defendants to leave  could not constitute forcible occupation although it may constitute  trespass.

28. It is evident from the material on record that not all the claimants in  the originating summons were actually in occupation of the suit  property.  The material on record shows that the 1^st and 2^nd  claimants were  working and residing elsewhere and that it was only the 3^rd Claimant and her children who were in occupation of the suit  property.  It would, therefore, follow that the 1^st and 2^nd Claimants   have not demonstrated their claim for adverse possession.   However, the court is satisfied from the material on  record that the  3^rd claimant in the counter-claim, Hannah Waiganjo, has proved her  claim for adverse possession to 3 acres of the suit property.  Accordingly, the court shall make appropriate orders in favour of her  estate.  The record shows that she died during the  pendency of the  suit and that Bedan Kamau Waiganjo was joined in  the suit as her  personal representative.

 (e) Whether the Plaintiff  is entitled to the reliefs sought  in the    suit

29. The reliefs sought by the Plaintiff were based on the ground that he  was the registered proprietor of the suit property hence entitled to  enjoy all the rights of a proprietor guaranteed by the law. Although  the Plaintiff is the registered proprietor of the suit property, the court  has already found that his claim for recovery of the portion occupied  by the Defendants is statute-barred.  The court has also found that  the 3^rd Plaintiff in the originating summons has already acquired  adverse possession of a portion of 3 acres of the suit property.  She  has been occupying for over 12 years. In the premises, the Plaintiff  is not entitled to the reliefs sought in the suit.

 (e) Whether the Defendants are entitled to the reliefs sought  in the   counter-claim

30. The court has found that the 3^rd Plaintiff in the originating summons  has demonstrated her claim for adverse possession of a portion of 3  acres of the suit property.  However, the court has found that the  claim for declaration of trust has not been established. In the  premises, the court is of the opinion that the 3^rd Plaintiff in the  originating summons is entitled to the declaration of adverse  possession only and not a declaration of trust.

 (f) Who shall bear the costs of the suit and counter-claim

31. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap. 21).   A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise.  See Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287.  The court has, however, noted that all the parties herein are relatives by virtue of being related to the late Waiganjo.  Accordingly, the court is of the opinion that the appropriate order to make is that each party shall bear his own costs.

I. CONCLUSION AND DISPOSAL

32. The upshot of the foregoing is that the court finds that the Plaintiff is  not entitled to the reliefs sought in the plaint or any one of them.   The court has also found that only the 3^rd Plaintiff in the counter  claim is entitled to some of the reliefs sought but not all of them.   Accordingly, the court makes the following orders for disposal of the  suit and counter-claim:

(a) The Plaintiff’s suit be and is hereby dismissed in its  entirety.

(b) The prayer in the counter-claim for a declaration of trust  over Title No. Laikipia/Ndindika/294 be and is hereby  declined.

(c) A declaration be and is hereby made that the 3^rd Plaintiff in  the originating summons dated 5^th May, 2017, has become  entitled to be registered as proprietor of 3 acres out of   Title No. Laikipia/Ndindika/294 on account of adverse  possession.

 (d) The 1^st and 2^nd Plaintiffs’ counter-claim for adverse  possession over the suit property be and is hereby  declined.

(e) That the Land Registrar, Laikipia County shall cause the 3^rd  Plaintiff in the originating summons to be registered as  proprietor of a portion of 3 acres out of the suit property.

(f) That the Deputy Registrar of the court is hereby authorized  to execute all the necessary forms, instruments and  documents on behalf of the Plaintiff to facilitate transfer of  the 3 acres to the 3^rd Plaintiff in the originating  summons.

(g) Each party shall bear his own costs of the suit and counter- claim.

JUDGMENT  DATED  AND SIGNED IN CHAMBERS AT NYAHURURU THIS 10TH DAY OF FEBRUARY, 2022 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM.

In the presence of

No appearance for the Plaintiff

Ms. Eunice Ndegwa for the Defendants

...........................

Y. M. ANGIMA

JUDGE