REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT

AT  MURANG’A

ELC CASE NO.28 OF 2020 (O.S)

IN THE MATTER OF THE LAND PARCEL  NUMBER LOC.5/MARIAINI/1304

AND

IN THE MATTER OF SECTIONS  7, 37 AND 38  OF THE LIMITATION OF ACTIONS ACT  AND ORDER  37 RULE 7 OF THE CIVIL PROCEDURE RULES

FRANCIS  KAMAU GICHANE...........PLAINTIFF

VERSUS

JEMIMA MUTHONI  MUIRURI......DEFENDANT

JUDGMENT

By an Originating Summons dated 29^th August 2019, the  Plaintiff herein filed this suit as against the  Defendant for the determination of the following  questions;

1. Whether the Defendant  is the registered proprietor  of land Parcel No. LOC.5/MARIAINI/1304.

2. Whether the Plaintiff has been in occupation of the said parcel of land  adversely for a period  of 12 years.

3.  Whether the Defendant’s  title to the said  parcel of land  has been extinguished by virtue  of the  Plaintiff’ Adverse Possession.

4.  And  if so whether  the Plaintiff has acquired  title to the said parcel  of land  and whether he should  be registered as the proprietor thereto  in place of the Defendant

5.  What orders should be made as regards costs.

In his Supporting Affidavit, the Plaintiff Francis Kamau Gichane averred that L.R 1304, was registered in the name of the Defendant by way of transmission on 29^th October 2018. That he took occupation of the suit property  in 1982, during the  lifetime of the Defendant’s  father  which possession was open and  with the Knowledge of  the said Muiruri Mithinga. That he occupied the suit property adversely  with his family to date  without any interruption from anybody. Further, that he developed the said land by planting coffee, bananas and  vegetables. That the  occupation  of the said  parcel of land  has been for a period  in excess of 12 years  and  he has acquired title to it.

The Originating Summons is  opposed by the Defendant  Jemima  Muthoni Muiruri who swore a Replying affidavit  on 30^th  September 2021,  and averred that L.R 1304, did not exist before  5^th September 1988, when it was registered in her father’s name  the late  Muiruri Mithinga  as a subdivision of L.R  427. That her father sold a portion  of L.R 427,  to the  Plaintiff and the same was registered as L.R 1305 and is registered in his name which he is in occupation of together with his family. That in 1993, her father was in occupation of the entire  L.R 1304,  and he fell sick and since he was not able to  till his land, he  leased part  of the portion that remained to different tenants. That the  Plaintiff who was in  occupation of L.R 1305,  leased the said portion and continued to till it together with the portion he had bought, but he continued to  pay seasonal rent.  That her father died in 1993, and she  asked the Plaintiff to vacate the suit land  and that  is when he said that he had bought the land  for Kshs.12,000/=. Further  that despite repeatedly  asking him to vacate, the plaintiff failed to do so . That the Plaintiff is using a very small portion  of L.R 1304.  that is registered in  her name  and that he has not been in occupation of the entire piece of land .  Further, despite the Plaintiff having knowledge that she had filed a Succession Cause, he did not object to her inheriting the land.

The matter proceeded by way of viva voce evidence wherein the   Plaintiff gave evidence for himself and called no witness and the Defendant gave evidence for himself and called two witnesses and closed her case.

PLAINTIFF’S CASE

PW1 Francis  Kamau Gichane,  testified that  he occupies L.R  LOC 5/ Mariarini/1304, since 1998. That the owner of the said  land was  Muiruri  Mithanga  the father to Jemimah  Muthoni . That he lives on the suit land and entered the this land after he was given the said land by  Muiruri Mithinga, who gave him  the land as he  used to take care of him. Further that they went before the Chief  and other elders who decided that he should  move out of the land. He  adopted  his  witness statement dated 8^th October 2020, as his evidence in Court . He further produced   an extract of the title as Exhibit 1. That apart from  the 1993 case before the elders,  he has never been requested to leave the  suit land. That  he has acquired the suit property by  virtue of Adverse Possession.

On cross examination,  PW1 testified that he lives on the suit land together with his  family  and that  Muiruri sold the land to him for Kshs. 70,000/=. That they had a sale agreement and they also obtained a Consent from the Land Control Board at Kandara   and the transfer Form was signed in his name. That the original land was  LOC 5/ Mariarini /427,  and a portion that remained was L.R 1304. That he is not farming the whole portion of land as the other portion has been leased out by Jemimah. He  denied leasing the land for Kshs. 60/= per season. That he took  possession of the  suit land in 1988  and the land was registered in the name of Jemimah in 2018, as a beneficiary. That when Muiruri fell sick, his daughter took him away  for treatment and that he paid him for the land to use for the ,medical bills. It was his further testimony that  Muiruri Mithinga gave him the parcel of land and that he is claiming 0.5 acres from LR No.  1304 . Further that he occupied the land in 1988, and it was the same time that Muiruri sold to him L.R 1305,  and  he got the title. That he did not have a Court Order to live on the suit property, but that he  had been given the same by Muiruri. That Ndunge uses the portion that he leased but not the one he uses. Further that he did not object to the Succession Cause as he did not know about it. That he filed a caution in 1993  and indicated a purchaser’s interest.

DEFENCE CASE

DW1  Jemimah Muthoni Muiruri,  the Defendant herein  adopted her witness statement as part of her evidence.  She further adopted her Replying Affidavit  dated 30^th September 2021,  as part   of  her evidence. A further Affidavit  dated 15^th November  2021, was adopted as her evidence in chief. She produced her list of documents  as  Exhibits 1 to 4. That she acquired the suit property by transmission from her Father. Further that Kamau  bought  one care from her father  and he  was given the title deed and  there was a balance of 1.2 acres . That when her father died, she asked Kamau to move out of her father’s land  and she reported the matter to the  Chief  and it was ruled that the land was hers.   Further that  Kamau entered L.R 1304  through leasing  and stayed for  the seasons without paying. That she acquired the title in 2015. That she got married in 1980 and  her home is 2 kilometers  from her maternal home. That they had a case before the elders in 1993. That she let the Plaintiff stay on the  suit land, but it was not her wish  since 1993 to 2018 without her consent. That  Kamau claimed that he bought the  land and  he refused to vacate  without a Court Order  and she had received a demand letter to stop disturbing him. That she used to ask Kamau the Plaintiff to move out  and it is only that she had not obtained the grant.

DW2 Ndunge Kamande Njoroge  adopted her witness statement as part of her evidence. She testified that Land Parcel No. L.R 1304, is  a portion that was leased out to her. That she is in the upper side and Kamau had leased the lower side. That he refused to move out even  after being told to move out. Further that Kamau used to pay Kshs.1600/=  per season  and he was never in occupation of the whole of the  suit property . That Kamau refused to  vacate the land as  he  alleged that  he was given the land by Muiruri .

DW3  Samuel Gichira Kamau  testified that  Kamau had leased Muiruri Mithinga’s land . He adopted his witness statement  as part of his evidence. That  Kamau bought L.R 1305  from Muiruri  Mithinga and  he leased out L.R 1304,  and he was to pay the leased portion to Muthoni. That he was to pay Kshs. 1600/= per season. Muriruri died in 1993, and that Kamau does not pay any  rent for the suit property.

Thereafter, the parties filed written submissions, which the Court has now carefully read and considered. The Court has also considered the Pleadings by the parties, the Affidavits, the relevant provisions of law and the written submissions and finds that the issue  for determination is Whether  the Plaintiff has proved a claim of adverse possession and therefore entitled to the orders sought.

The  Plaintiff has sought for the determination of various  questions  all culminating to the issue of whether he has acquired Land Parcel  LOC.5/MARIAINI/1304. As to whether the Defendant is the registered owner of the suit property, the same is not in doubt  as evidenced in the title deed  dated 29^th October 2018. It is the Plaintiff’s contention that he   has acquired the suit property by way of Adverse Possession. The guiding provision of law relating to Adverse Possession   is  Section 7 of the Limitation of Actions Act which provides;-

“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.”

Further the Court is guided by Section 38 (1) and (2) Limitation of the Actions Act that provides as follows:

(1) 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.

(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

For a party to be declared to have acquired property by virtue of adverse possession, other principles must be met as cited by the Court  in the case of Gerald Muriithi …Vs…Wamugunda Muriuki & Another (2010) eKLR while referring to the case of Wambugu …Vs…Njuguna (1983) KLR page 172, where the Court of Appeal held as follows;

“1. In order to acquire by statute of limitations title to land which has a known owner the owner must have lost his right to the land either by being dispossessed of it or by having continued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed of the suit land for a continuous period of twelve years as to entitle him, the respondent to title to the land by adverse possession.

2. 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 would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not the claimant has proved that he has been in possession for the requisite number of years. (Emphasis)”

For the Plaintiff herein to succeed in his claim for Adverse Possession, he must prove his possession, dispossession and discontinuance of possession by the Defendant herein for a continuous period of 12 years and that the same was  done without interruption .See the case of Samuel Nyakenogo vs Samuel Orucho Onyaru Civil Appeal No. 24 of 2004 (2010) eKLR, where the Court held that:-

“The Limitation of Actions Act on Adverse Possession, contemplates two concepts; dispossession and discontinuance.  The proper way of assessing proof of adverse possession will then be whether or not the title owner has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he had been in possession for the requisite period.”

Under section 38(1) and (2) of the Limitation of Actions Act, a person can acquire title to someone else land by virtue of adverse possession after continuously occupying the said land in a way that is inconsistence with the owner’s rights.  Such entry or possession must be non-permissive, open and notorious, exclusive adverse and with the lapse of the statutory period of 12 years.  See the case of Kimani Ruchine vs Swift Ruthford & co. Ltd (1980), where the Court held that:-

“The plaintiff’s have to prove that they have used this land which they claim as of right; nec vi, nec clam, nec precario ……..”

The said possession must be continuous and it must not be broken for any temporary purpose or by any endeavours to interrupt it or by any recurrent considerations.  This was the same position held in the case of Celine Muthoni vs Safiya Binti Swaleh & others ELC No. 248 of 2016, where the Court held also that:-

“It is also a well settled principle that a party claiming Adverse Possession ought to prove that this possession was nec vi, nec clam, nec precario; that’s peaceful, open and continuous.  The possession should not have been through force, not a secrecy and without the authority on permission of the owner”.

The above are the principles that needed to be satisfied before the Court can declare that the Plaintiff has acquired the property by virtue of adverse possession.  This Court will then consider the available evidence, juxtapose it with the above principles and then determine whether the Plaintiff herein has proved his case on the required standard.

 The Plaintiff has   contended that  he  has acquired the title  to the suit property by way of  Adverse Possession having  occupied the suit property  for a period of over 12 years. Initially, in his  Affidavit, the Plaintiff indicated  that he entered the suit property in 1982, but has since submitted that he  took possession of the suit property  in 1988.  It is not in doubt that the Defendant acquired proprietorship  of the suit property by way of transmission from her father. Though ownership has changed, it however does not mean that time stopped running at any time.

The Defendant has also challenged the continuous and uninterrupted possession of the suit property   by the Plaintiff and has averred that the Plaintiff entered the suit property as a  leasee and that  he was to lease  part of the suit property  and pay rent per season, but he refused to pay  and has remained on the suit property  despite her calls to have him vacate the said land. From the evidence adduced by the witnesses, and from the Plaintiff’s evidence  it is not in doubt that the Plaintiff is not in possession of the whole of the  suit property which he has claimed Adverse Possession, but only a portion of the same, as he has  in his testimony claimed 0.5acre.

One of the principle that the Plaintiff needed to prove is that he entered into the suit property without permission of the registered owner.   The Plaintiff testified that he entered the suit property with the Defendant’s father permission and that he has never  been asked to vacate the suit property.   The Plaintiff has claimed adverse possession having been in continuous possession  since 1993. The Court has seen the    elders’ proceedings that  confirm that the   Defendant indeed had asked  the Plaintiff to  vacate the suit property. The Court has further considered the  witnesses’ evidence and the documents  adduced in evidence and it is clear that the  Plaintiff initially entered the suit property with permission. However, it is not clear whether or not he was leasing the same. Further it is clear to the Court that his possession post 1993 was not without interruption. The same is buttressed by the letter  dated 11^th July  2005,  to the Defendant from the Plaintiff’s  Advocates  asking the Defendant  to abstain from  interfering with the   Plaintiff’s  peaceful possession  of the land. It is thus not in doubt that  his possession was not peaceful nor was it uninterrupted.  It is further not in doubt that the Plaintiff was  occupying the suit property with force, as he refused to vacate the suit property despite being asked to  vacate by the Defendant.  Being in occupation in itself is not dispossession, and the Plaintiff needed to prove that he has lived thereon continuously without any interruption and without force or secrecy which the Court holds he has failed to do .

Further the Plaintiff has sought to be registered as the owner of L.R No. LOC.5/MARIAINI/1304. From the evidence adduced, it is not in doubt that the Plaintiff was not in possession of the whole suit property as he claim,  but only part of the same as DW2  testified  that  she  has leased part of the suit property  and the  Plaintiff acknowledged that he is claiming  O.5acre .

Parties are bound by their pleadings, and the Plaintiff has claimed the whole of  the suit property  while he has not proved that he has been in possession of the  whole of the suit property herein. It is not clear that the Plaintiff herein is claiming a definite and clear portion of land from the suit property that is owned by the Defendant.

Having carefully considered the available evidence, the Court finds and holds that the Plaintiff herein did not avail sufficient evidence to prove on a balance of probabilities that he indeed dispossessed the Defendant of the suit property.  For the above reasons, the Court finds and holds that the Plaintiff has failed to prove his claim as contained in the Originating Summons dated 29^th August  2019, on the required standards, and consequently the said Originating Summons is dismissed entirely with costs to the Defendant herein.

It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 28^TH  DAY OF APRIL, 2022

L. N. GACHERU

JUDGE

 Judgment delivered virtually in the presence of;-

Kuiyaki - Court Assistant

Mr. Butany for Plaintiff

M/s Ngugi  for Defendant