1.The plaintiff herein, Lydia Mbeca Wambugu, took up the summons dated January 26, 2015 for determination of whether she has become entitled to plot No.49 Kangaita Market (hereinafter referred to as the suit property) by adverse possession and whether the Registrar should cancel the name in the Register of the suit property and replace it with her name.
2.The plaintiff’s claim is premised on the grounds that she has been in occupation and possession of the suit property; that her occupation and possession of the suit property has been open, quiet and uninterrupted for over 12 years (since 1983); that the defendant is the registered owner of the suit property and that in 2010 the defendant wrote to her demanding that she vacates the suit property. Further, that in 2011 the defendant filed a case in court to wit Nyeri CMCC No.412 of 2011 seeking to evict her from the suit property.
3.On 28th October 2016, directions were taken to the effect that the Originating Summons be converted into a plaint; supporting affidavit to a statement and that documents annexed to the supporting affidavit to be the plaintiff’s list of documents. Further directions were taken to the effect that the defendant’s pleadings filed in Nyeri CMCC No.412 of 2011 be taken as the defendant’s defence. The matter was then set down for hearing.
4.Vide Nyeri CMCC No.412 of 2012, the defendant had filed a suit in the lower court seeking to be declared the owner of the suit property; an order of eviction against the plaintiff herein and an order of permanent injunction to restrain the plaintiff herein from trespassing into the suit property, remaining thereon or dealing with the suit property in any manner incompatible with his rights as the owner thereof.
5.The defendant had pleaded that he is registered owner of the suit property; that sometime in 1984 the plaintiff herein had proposed to buy the suit property and paid Kshs. 5,000/= as deposit; that the plaintiff failed to fulfil the conditions of sale leading to advertisement of the suit property by the County Council for sale on account of unpaid County Council dues; that he is the one who has been paying County Council dues and that on April 3, 2010 he issued the plaintiff with a notice to vacate the suit property which notice the plaintiff refused to heed despite having received refund of the deposit paid in respect of the suit property.
6.In response to the defendant’s case, the plaintiff had filed a statement of defence contending that she had paid the whole of the purchase price, being Kshs.5000/= and taken possession of the suit property; that the defendant having sold his interest in the suit property to her, had no basis interfering with her possession of the suit property or paying rent and rates in respect of the suit property. The plaintiff further contended that she had acquired title to the suit property by adverse possession.
The Plaintiff’s Case
7.During hearing, the plaintiff who testified as P.W.1, informed the court that she purchased the suit property from the defendant. She produced the agreements entered into between herself and the defendant over the suit property as Pexbt 1(a) and (b). The agreements were entered into on December 6, 1983 and March 6, 1984. She took possession and has been living therein since then. She has been paying rates to the County Council of Nyeri in the defendants’ names. To attest to that fact, she produced receipts as Pexbt 3(a) to 3(d). On September 10, 1995, she paid Kshs. 250/- to Kangaita Plot Owners as attested by Pexbt 4.
8.The plaintiff informed the court that despite having met her part of the bargain, the defendant failed to transfer the suit property to her. She reported the matter to the village elders and the area chief. She denied the defendant’s contention that he refunded the purchase price to her but stated that the defendant attempted to refund the money to her through the village headman but she rejected the offer because they did not have an agreement to that effect.
9.Maintaining that since she bought the property in 1983 she has been the one in use and occupation of the suit property, the plaintiff produced a search certificate showing that the defendant is the registered owner of the suit property as Pexbt 5 and urged the court to grant her the orders sought.
10.In cross examination, the plaintiff stated that before the suit property was allocated to the defendant, it belonged to the County Government of Nyeri; that he does not know whether or not the defendant has title to the suit property; that she reported her dispute with the defendant to the members of Provincial Administration (headman, chief, D.O) and to the County Secretary. She admitted that she had never made any payment for dispute resolution to the Council.
11.The plaintiff stated that on April 6, 2010, the defendant through the village headman attempted to refund to her the Kshs.5000/= she had paid in respect of the suit property. She rejected the money and gave it back to the headman the following day. The court heard that the defendant had cheated her that the 5000/- was to be taken to the County Council. When she took the money to the County Council, she was informed that she should return the money to the owner. She handed the money back to the headman as advised. She stated that she would make payments to the Council but would not insist on being given receipts. Later, she was advised to be retaining the receipts. She was unaware that at one point the Council intended to sell the suit property for none payment of rates.
12.She admitted that the defendant had been paying for some of the rates. The defendant advised her to stop paying the rates. She was unaware that the defendant never intended to transfer the suit property to her. She is not aware that the suit property is a commercial plot. She has not developed the suit property because when she brought materials, the defendant started causing problems.
13.In re-examination, the plaintiff stated that the Kshs. 5000/= brought to her by the headman was brought without explanation. She was told to take it to the county offices but she returned the money.
14.The statement of Peter Njaramba Kihara was admitted in evidence. The statement is to the effect that he was present when the agreement between the plaintiff and the defendant was made on December 6, 1983 and that he is aware that the plaintiff fulfilled her part of the bargain but the defendant refused to transfer the land to her.
The Defendant’s Case
15.The defendant who testified as D.W.1, informed the court that he knows the plaintiff. He entered into an agreement for sale of the suit property to the plaintiff but has not effected transfer to her. After they entered into the agreement for sale of the suit property, he persuaded the plaintiff to accompany him to the offices of the County Council so that he could transfer the plot to her but she did nothing. Because the Council had advertised the suit property for sale over unpaid rates, he paid the rates which as at 2006 amounted to Kshs.11,000/= and revoked the sale. He refunded the purchase price, Kshs.5,000/= to the plaintiff in presence of the Area Assistant Chief among other people. A week later, he received a demand notice from the plaintiff’s lawyer. The Assistant Chief also called him and told him that the plaintiff had returned the money to her to pass to him. He never took the money. The defendant produced receipts showing that he was paying rates in respect of the suit property as Dexbt 1(a) and (b); demand letter dated April 16, 2010 as Dexbt 2 and his letter dated April 23, 2010 as Dexbt 3. He maintained that the suit property is a commercial plot and that the plaintiff has not developed it.
16.In cross examination, he admitted that since he sold the suit property to the plaintiff, the plaintiff has been in occupation; That he has not filed any documents showing that the Council advertised for repossession of the suit property; That the plaintiff comes from the neigbourhood; that he does not know whether or not the plaintiff is literate; That when he attempted to refund the purchase price to the plaintiff, he was not taking advantage of her. He acknowledged that the plaintiff paid him Kshs. 5000/- and continued utilizing the plot. He paid the arrears of Kshs.11,000/=. Although the value of the plot had increased, there was a balance between what he paid to the Council and what she paid him; That by the time he paid the first rates in 2009, the plaintiff had been in occupation for 26 years. He got bothered when the plot was advertised for sale because he was told that the registered owner would pay legal fees. He had no documents capable of proving that fact. He admitted that his payment of the rates was not a justification for revoking the agreement between the plaintiff and him.
17.Claiming that the plaintiff was never interested in the suit property, the defendant stated that he never refused to take the plaintiff to the Council and that he could not transfer the plot to her because there were arrears.
18.In re-examination, he stated that the plaintiff was supposed to get transfer money to enable him transfer the plot to her but she never raised the money. As a result, he continued getting demand notices and threats from the County Council of the plot being sold by the Council and being saddled with legal fees. Terming the conduct of the plaintiff unacceptable, he stated that he had to salvage the plot.
19.D.W.2 Lucy Wairuri Maina, informed the court that she was the Assistant Chief Kagaita; That the parties to this case are known to her; That they reside in her area of jurisdiction. She stated that the parties appeared before her regarding a land dispute, on April 6, 2010. The parties had entered into a land transaction. The land had not been transferred to the plaintiff because she had not been paying the rates. The rates had accrued to Kshs.11,000/=. The defendant refunded Kshs.5000/= to the plaintiff being the money she had paid. She received the money and acknowledged receipt. One week later, the plaintiff brought the money back. She called the defendant who refused to take the money. The money was left in the chief’s office. The plaintiff had not complained about being refunded the money. She denied the contention that the defendant and she took advantage of the plaintiff because she was illiterate. She stated that they communicated in Kikuyu and she gave the plaintiff time to ask any questions. She took ten (10) days to refund the money. She called other administrators to confirm return of the money.
20.In cross examination she stated that when the money was returned, she summoned both the plaintiff and the defendant. The money was returned and rejected in her presence. When she summoned the parties to her office, she had given them the option of coming with witnesses. The plaintiff came alone but the defendant had witnesses. The money was handed over to the plaintiff in her presence. She had not carried any document showing the handing over of the money.
21.D.W.3 Josphat Mbuthia Gachura, informed the court that he was present in the meeting at the Assistant Chief’s office on April 6, 2010 together with the two parties. The Kshs.5000/= was handed over to the plaintiff by the Assistant Chief in his presence and in the presence of the defendant; that he did not visit the Assistant Chief’s Office on April 3, 2010; that he is not the one who took the letter to the Assistant Chief. He stated that he was not present when the plaintiff returned the Kshs.5000/= to the Assistant Chief. The dispute is about refund of Kshs.5000/= the plaintiff had paid to the defendant but the plaintiff had failed to pay transfer fees to the Council. The plaintiff has been occupying and utilizing the plot.
22.In re-examination, he stated that the plaintiff refused to pay transfer fees. The demand notice for rates was being sent to the defendant who was the registered owner of the plot.
Analysis and Determination
23.At close of hearing parties filed submissions. From the pleadings, the evidence adduced in support thereof and the submissions, I find the issues for determination to be: -i.Whether the contract entered between the plaintiff and the defendant was validly rescinded;ii.Whether the plaintiff has made up a case for being granted the orders sought;iii.What orders should the court make?
24.On whether the contract entered between the plaintiff and the defendant was validly rescinded; it is noteworthy that whereas in his pleadings in the suit he instituted in the lower court the defendant had pleaded that the defendant had not fully paid the purchase price, the evidence adduced in this case shows that the agreed purchase price was Kshs.5,000/= and was fully paid by the plaintiff to the defendant. The defendant despite having received the full purchaser price, failed to transfer the suit proper to the plaintiff.
25.According to the agreement signed between the plaintiff and the defendant, Pexbt 2(b), The defendant was supposed to pay money owed to the County Council of Nyeri (I take that to mean that accrued rent and land rates for the period before the sale of the plot to the plaintiff-that is the period before March 10, 1984). The plaintiff was to pay transfer fees. My interpretation of the agreement is that the defendant was to pay the accrued rent and rates at completion of the sale transaction. If he had done that and transferred the land to the plaintiff as contemplated in the sale agreement, the issue of accrued rent and rates would have been addressed to the plaintiff. He created the situation by failing to facilitate transfer of the plot to the plaintiff. Whilst the defendant claimed that the plaintiff failed to provide transfer fee, he led no evidence capable of proving that fact.
26.There is evidence that the plaintiff was paying land rent and rates in the name of the defendant, Pexbt 3(a) to 3(d). The receipts are for the period up to 2000. There is also evidence of payment of land rent and rates by the defendant, Dexbt 1(a)-(f).
27.Concerning the circumstances that led to payment of rates by the defendant, the defendant explained that the plaintiff had failed to pay the land rates and rent. As a result, the plot was advertised for auction. He was also threatened with legal fees. As pointed out herein above, no evidence of those allegations was tendered. Claiming that the plaintiff was in breach of the contract executed between them the defendant informed the court that he rescinded the contract and returned the purchase price to the plaintiff, through the area administrator. The plaintiff acknowledged having received the money but explained that she had been cheated that the money was to be taken to the County Council which she did. At the Council, she was advised to return the money to the defendant. The evidence adduced in this case shows that the plaintiff promptly returned the money to the defendant through the area administrator but the defendant declined it. The money is held at the Chief’s office. The question arising from the above set of facts is whether the contract between the plaintiff and the defendant was validly rescinded?
29.In applying the principles enunciated in the cited case to the circumstances of this case, firstly, the evidence adduced shows that the plaintiff had fully fulfilled her part of her bargain. She paid the full purchase price as attested by Pexbt 3(b) and was paying land rent and rates for the property in the name of the defendant. For reasons known only to the defendant, I say this because in his pleadings the defendant claimed that the plaintiff had failed to complete the purchase price, a position he diverted from and claimed that she had refused to pay for transfer, I find that explanation and excuse not capable of forming the basis of the purported rescission. There was no written notice given to the plaintiff as required by law before the purported rescission. Being of the view that it is the defendant who was in breach of the obligation of transfer, I find and hold that he had no right to rescind the contract which had fully been performed by the plaintiff. Having sold the suit property to the plaintiff, the defendant had no legal obligation to continue paying land rent and rates in respect thereof. His payment of the land rent and rates was but a mere excuse to deprive the plaintiff of the suit property. This court being a court of law and equity would not allow him to have his case and still retain it. For the foregoing reasons, I find and hold that the contract entered between the plaintiff and the defendant was not validly/legally rescinded.
31.In applying the principles enunciated in the cases cited above to the circumstances of this case where it is not in dispute that the plaintiff had been in uninterrupted, peaceful and quiet use of the suit property for over 26 years since the last instalment was made and before the defendant purported to rescind the agreement, I would have no difficulty in finding that the plaintiff had long acquired title to the suit property by adverse possession. However, there is a question of law arising from a reading of Section 37 as read with 38 of the Limitations of Actions Act, Cap 22 Laws of Kenya, to wit whether land not registered under the registration regimes specified in Section 37, like the subject matter of this suit can be the subject matter of a claim for adverse possession.
34.The search certificate produced by the plaintiff (Pexbt 5) showing that the defendant is the registered owner (read allottee) of the suit property is not the kind of title required for purposes of founding a claim for adverse possession. Nevertheless, the evidence is relevant for purposes of an order directing the defendant to transfer the plot or even the County Government to transfer the land as that appears to be the essence of the plaintiff’s case.
35.The upshot of the foregoing is that the plaintiff has made a case of being declared the lawful owner of the suit property. To give effect to this determination, I direct that the registration of the defendant as the owner of plot No.49 in the records held by the County Government of Nyeri be cancelled and substituted with that of the plaintiff and/or the administrator of her estate.
36.As the plaintiff has succeeded in her case against the defendant, I award her the costs of the suit.