Ngiti v M’Mwereria (Environment & Land Case 64 of 2012)  KEELC 15196 (KLR) (7 December 2022) (Judgment)
Neutral citation:  KEELC 15196 (KLR)
Republic of Kenya
Environment & Land Case 64 of 2012
CK Yano, J
December 7, 2022
Peter Kirimi J Ngiti
John Ikunda M’Mwereria
1.The plaintiff filed an originating summons dated 6th August 2012 and filed on 7th August 2012 seeking for orders that:1.The plaintiff/applicant has become entitled by adverse possession to 0.25 acres out of parcel of land reference No. NKUENE/KITHUNGURI/712 measuring 1.20 acres pursuant to the Limitation of Actions Act.2.The said plaintiff/applicant be registered as the sole proprietor of the said 0.25 acres of parcel of land reference number NKUENE/KITHUNGURI/1584, which area was originally excised from the main land NKUENE/KITHUNGURI/712, under Section 38 of the Limitation of Actions Act.3.Such other or further orders as may meet ends of justice in this case.4.Costs be provided for
2.The originating summons is supported by the affidavit of PETER KIRIMI J. NGITI the plaintiff sworn on 6th August 2012 and a supplementary affidavit sworn on 19th August 2013.
3.The plaintiff’s case is that he entered into an agreement for sale of land with the defendant on 6th February, 1997 in which the defendant sold 0.25 acres to the plaintiff out of the defendant’s land parcel title number NKUENE/KITHUNGURI/712 measuring 1.20 acres. The plaintiff states that after execution of the agreement for sale, he took possession of the said land, fenced it on clearly marked boundaries and developed the same extensively by planting bananas and other crops. That from then the plaintiff together with his family have used the land continuously and uninterruptedly notwithstanding the fact that the Land Control Board consent was not obtained. The said land was therefore not officially transferred to the plaintiff. It is the plaintiff’s case that the said 0.25 acres of land has clear marked boundaries, but the defendant has started interfering with the plaintiff’s rights by sub dividing the original parcel of land NKUENE/KITHUNGURI/712 into three sub-divisions, one of which is NO. NKUENE/KITHUNGURI/1584 which falls on the plaintiff’s land. The plaintiff has annexed copies of the said agreement marked “PKNI” and copies of the title of the subdivisions marked “PKN 2” “PKN 3” and “PKN 4”.
4.In response to the originating summons, the defendant filed grounds of opposition and a replying affidavit both dated 3rd July 2013. It is the defendant’s contention that the entire summons as drawn and filed is frivolous fatally defective, an abuse of the court process and untenable in law for reasons that the same is premised on fraudulent, deceitful and misleading averments and depositions on the part of the plaintiff, that the summons raises no reasonable cause of action and that the prayers sought by the plaintiff are unsustainable and unavailable as the pleadings presented in court by the plaintiff are irreconcilable and incompatible with the accompanying pieces of evidence.
5.The defendant averred that the entire suit is deftly crafted masterpiece designed to defraud him of his land through the judicial process. The defendant has deponed that whereas it is true that he entered into an agreement with the plaintiff to sell him 0.25 acres to be excised from L.R NO. NKUENE/KITHUNGURI/712, the plaintiff has never taken actual possession, fenced the same or effected any developments thereon. The defendant denied that the subdivisions L.R NOS NKUENE/KITHUNGURI/1583, 1584, and 1585 exhibited by the plaintiff in his supporting affidavit are subdivisions of LR. NOS. NKUENE/KITHUNGURI/721 and not the land in question, LR NO. NKUENE/KITHUNGURI 712 as claimed by the plaintiff. The defendant avers that both parcels are completely distinct and separate and that at no time did he contemplate selling a portion from L.R NO. NKUENE/KITHUNGURI/721 to the plaintiff. That in the circumstance, the issue of being entitled to a portion measuring 0.25 acres in L.R NO. NKUENE/KITHUNGURI/1584 by adverse possession is farfetched and baseless. The defendant prayed for the orders of caution and inhibition to be lifted and for the entire suit to be struck out with costs.
6.In his supplementary affidavit, the plaintiff deponed that he stands by the averments in his affidavit dated and sworn on 6th August 2012 except to correct the number which reads 712 to 721. He averred that the defendant has not shown that Land Reference No. NKUENE/KITHUNGURI/712 exists and that the agreement does not contain a typing error. The plaintiff maintained that he bought 0.25 acres from the defendant and paid the full purchase price, adding that the land had been identified to him on the ground and that as agreed in the agreement the plaintiff took possession of the land and has been using it since then. That despite the error in the agreement, the positon is that the plaintiff has been living on L.R NO. NKUENE/KITHUNGURI/1584, adding that the technicalities raised by the defendant cannot stand in view of the provisions of the Constitution and the Civil Procedure Act.
7.At the hearing, Peter Kirimi Ngiti the plaintiff testified as P.w 1 and did not call any witness. He was cross examined and re-examined. He testified that he bought the suit land from the defendant who has since subdivided it. That they signed the sale agreement dated 6th February, 1997 and that he first paid the sum of Kshs. 23,000/= leaving a balance of Kshs. 2,000/= which he paid later.
8.The plaintiff stated that he took possession of the land and developed it by planting coffee, bananas, nappier grass and grevillea trees and that he is still in possession of the land.
9.His evidence is that no one has disturbed his possession and occupation though he has not been issued with a title deed. The plaintiff testified that the defendant is now deceased, and that his widow agreed to give him title but the children complained. He stated that at the time he purchased the land, the defendant’s children were still in school and the consideration was used to pay their fees. The plaintiff produced the sale agreement dated 6th February,1997 and copies of register on LR. NOS. NKUENE/KITHUNGURI/1583, 1584, and 1585 as P exhibit 1 to 4 respectively.
10.When cross examined by Mr. Muriithi, learned counsel for the defendant, P.w 1 stated that he has not put up a house on the suit land as he lives on another parcel of land which is next to the suit land. He agreed that in the sale agreement produced as P exhibit 1, he was buying 0.25 acres out of parcel No. Nkuene/Kithunguri/712, adding that he filed a supplementary affidavit on 20th August, 2013 in which he deponed that parcel No. 712 was not owned by the defendant as it belonged to one M’Mutwambari. He stated that Parcel No. 1584 is a subdivision of parcel Number 712.
11.The plaintiff stated that he was buying 0.25 acres and that after executing the sale agreement, they went and subdivided the land. He confirmed that the green card for parcel No. 1584 (P exhibit 3) the land is measuring 0.18 Ha (which is about 0.44 acres).
12.The plaintiff testified that he placed cautions in all the parcels of land because he had bought one, LR. NO. 1584 which he said he had developed. He stated that he was using the entire parcel No. 1584, and that if it is more than 0.25 acres, then that was not his mistake. The plaintiff confirmed that in the originating summons, he is claiming 0.25 acres out of parcel L.R NO. 1584. That if the land was more than 0.25 acres, the defendant should bring a surveyor to give the plaintiff 0.25 acres. He stated that he has a receipt for Kshs. 2,000/= which he was given by the defendant but did not have it before court.
13.When re-examined by Ms Rimita learned counsel for the plaintiff, the plaintiff stated that the parcel No. 1584 which he is claiming is out of parcel No. 721. He further stated that all the parcels came from parcel No. 712, that is 721, 1583, 1584 and 1585. That the surveyor came and gave him parcel No. 1584 and asked the court to assist him get title because he is in possession and occupation of the land.
14.John Ikunda M’Mwereria (now deceased) the original defendant died on 6th August, 2015 and his widow Alice Karambu Mwendwa was substituted in place of the deceased. The defence did not adduce any evidence for the reason that the defendant’s legal representative was not privy to any dealings or transactions that might have occurred in relation to the suit.
15.The plaintiff filed his submissions dated 23rd August 2022 and filed in court on 29th August 2022. He submitted that he took possession of the suit property in performance of the sale agreement between the plaintiff and the defendant who was the registered owner of the suit property in 1997.
16.The plaintiff cited Section 3 (3) of the Law of Contract Act which provides that
17.The plaintiff’s submissions is that the proviso to Section 3 ( 3) of the Law of Contract Act applies in this case and therefore the sale agreement between the plaintiff and the deceased defendant did not violate or offend the Provisions of the Law of Contract Act.
18.The plaintiff further submitted that in regard to the consent by the land Control Board, the plaintiff correctly pleaded that the defendant failed to obtain the same so that transfer in favour of the plaintiff’s name would be effected.
19.The Plaintiff relied on case of Kimani Ruchire Vs Swift Rutherford & Co. Ltd (1980) K10 in which Kneller J held that-;
20.The plaintiff submitted that he entered the suit property in 1997 and occupied the same by claim of right, that his occupation was not only actual and physical but open and uninterrupted, further that he has developed the suit property by planting trees, building houses and farming seasonal crops.
21.The plaintiff further submitted that time began to run for purposes of his claim for adverse possession in the year 1997 the year of the sale agreement between the said parties and that in that year the plaintiff took legal possession of the suit property.
22.The plaintiff also relied on Wambugu Vs Njuguna ( 1983) KLR where the Court of Appeal held;
23.The plaintiff contends that entry to the suit property was pursuant to a sale agreement in 1997 with the plaintiff as a bona fide purchaser for value and that the entry was with the permission of the defendant ( registered proprietor then) qua vendor
24.The plaintiff relied on the case of Public Trustee Vs Wandura (1984) KLR 314 where at 319 Madam J.A stated “that adverse possession should be calculated from the date of payment of the purchase price to the full span of 12 years if the purchaser takes possession of the property because for that date the true owner is disposed off possession. A purchaser in possession of the land purchased, after having paid the purchase price is a person in whose favour the period of Limitation can run.”
25.The plaintiff further relied on the case of Mwangi & another Vs Mwangi (1986) KLR 2328 in which it was held that rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights.
26.The plaintiff also cited the case of Public Trustee Vs Wandura (1984) KLR 314 at 321 in which it is stated that a purchaser in possession has an overriding interest under the provisions of the Registered Land Act (now repealed).
27.The plaintiff referred to the dicta in the case of Mwangi (supra) that establishes the principle that the right of a person in possession or occupation of land are equitable rights which are binding on the land.
28.The plaintiff submitted that his occupation was therefore possessory right and are not only equitable rights but an overriding interest binding on the land.
29.The plaintiff cited Section 7 of the Limitation of Action Act that provides that:
30.The plaintiff prayed that his summons be allowed in terms of the prayers sought therein.
31.In her submissions filed on 28th September, 2022, the defendant submitted that the plaintiff’s contention is that he has acquired ownership of a portion measuring 0.25 acres in L.R No. NKUENE/KITHUNGURI/1584 as excised from LR. NKUENE KITHUNGURI/712. The defendant submitted that it is clear that L.R No. NKUENE/KITHUNGURI/1584 is not a subdivision of L.R NO. NKUENE/KITHUNGURI/712 as evidenced from the green card availed by the plaintiff.
32.The defendant further submitted that, be that as it may a claimant under the doctrine of adverse possession must in his evidence demonstrate that they have been in occupation of the suit land for a period exceeding twelve (12) years without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land and that the adverse possessor has done acts on the land, which are inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it as seen in John Ndung’u Kipsoi Vs Samwel Chepkulul & another ( 2018) eKLR.
33.The defendant submits that in the instant case the entry of the plaintiff is claimed to have been with the permission of the registered owner on the strength of a sale agreement. The defendant further contends that in the circumstances of this suit it is pertinent for them to address their mind on the legal implications of entry into a parcel of land with the permission of the registered owner and the subsequent lapse of the statutory period of twelve (12) years.
34.The defendant relied on Christopher Kioi & Another Vs Winnie Mukolwe & 4 others ( 2018) eKLR in which the Court of Appeal held-;
35.The defendant further relied on a passage quoted by the Court of Appeal in Samuel Miki Vs Jane Njeri Richu C.A No. 122 of 2001 that:
36.The defendant further relied in the case of Mbaoni M’Ithara Vs James Mbaka ( 2018 ) eKLR in which the court of appeal cited with approval the following passage made in Wambugu V Njuguna 1983 KLR 172The learned judges further stated
37.The defendant contends that in the instant case the plaintiff did not lead evidence on the particulars of the contract and that a perusal of the agreement indicates that the balance of Kshs. 2,000/= was to be paid on an unspecified date in future and that the plaintiff did not prove that such payments was even made.
38.The defendant quoted the decision made in Joseph Ngareh Kanyeria Vs Sarah Wandia Njogu ( sued in the capacity of the legal representative of the estate of Njogu Kibaka ( deceased) 2020 EKLR in which the court quoted the following passage made in the court of appeal case of Wambugu Vs Kamau Njuguna Civil appeal No. 10 of 1982;-
39.It is the defendant’s submissions that the plaintiff has failed to prove his claim to the required standard and prayed that the suit be dismissed with costs.
ANALYSIS AND DETERMINATION
40.This court has carefully considered the pleadings, the evidence and the submissions filed by the parties to buttress their assertions. I have also taken into account the legal authorities proffered by the parties. The court identifies the following issues for determination.i.Whether the plaintiff has proved that he has acquired 0.25 acres in LR. NO. NKUENE/KITHANGARI/1584 through the legal doctrine of adverse possession.ii.Whether the plaintiff is entitled to the reliefs sought.
41.In deciding whether or not the plaintiff has proved his claim for adverse possession to the required standard in civil cases, the plaintiff must prove that he has been in occupation of the suit land measuring 0.25 acres for a period of over twelve (12) years, that such occupation was open, peaceful and continuous without interruption from the registered owner and that such occupation was adverse i.e inconsistent with the right of the registered owner.
42.In Wambugu V Njuguna ( 1983) KLR 173 the Court of Appeal restated the principles for adverse possession and held as follows-;
43.In the case of Mtana Lewa – vs Kahindi Mangandi  Eklr, the Court of Appeal (Makhandia) JA stated as follows;
44.The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act which provides:
45.Section 13 of the same act further makes provisions for adverse possession as follows-;
46.Section 38 (1) of the Limitation of Action Act provides that;
47.In this case, the plaintiff testified that he entered into a sale agreement with the defendant on 6th February, 1997 for the purchase of a portion of land measuring 0.25 acres in LR No. NKUENE/KITHUNGURI/721 at a consideration of Kshs. 25,000/= out of which he paid Kshs. 23,000/= on the day of executing the agreement and the balance on a subsequent date. It was the plaintiff’s testimony that he immediately took possession of the land in February, 1997 and has been in occupation since then until the time the suit was filed in the year 2012. The plaintiff further testified that there was an error in the agreement for sale in which the land was referred to as LR. NO. NKUENE/KITHUNGURI/712 instead of NKUENE/KITHUNGURI/721. Indeed in his supplementary affidavit in support of the originating summons the plaintiff sought to correct the number to read 721 instead of 712.
48.The plaintiff further testified that the original land was subdivided by the defendant and the portion sold to him and which he is in possession and occupation is LR. NO NKUENE.KITHUNGURI/1584 which was excised from LR NO. NKUENE/KITHUNGURI/721. As already stated, the defence did not adduce any evidence for the reason that the defendant’s legal representative was not privy to any dealings or transactions that might have occurred in relation to the suit land. The evidence of the plaintiff therefore remains uncontroverted. Though the defendant never adduced any evidence to challenge the plaintiff’s evidence, the burden on the plaintiff to prove his case remains the same and that burden of proof is in no way lessened because the defendant did not adduce any evidence (see Karugi & another Vs Kabiya & 3 others (1987)KLR 347 and Charter House Bank Limited (under statutory Management) -V- Frank N. Kamau  EKLR)
49.From the material placed before me, there is no dispute that the defendant is the registered owner of the suit property. The plaintiff placed before the court the agreement for sale, copies of titles including for subdivision LR No. NKUENE/KITHUNGURI/1584.
50.The plaintiff testified that he purchased a portion of the land measuring 0.25 acres on 6th February, 1997, took possession and is still in possession and occupation, but has never gotten title. In my humble view, the mere change of the title number due to subdivision of the original title that was sold and which the plaintiff took possession of does not make the plaintiff’s claim to fail.
51.In the case of Githu V Ndeete 1984 (KLR) 766, the Court of Appeal held that “a title by adverse possession can be acquired under the Limitation of Actions Act to a part of the parcel of land which the owner holds title”. In Kasure Vs Mwaani Investments Ltd & 4 others (2004) KLR 184, at page 188, it was stated-;
52.In the case of Public Trustee –V- Wanduru ( 1984) KLR 314, the claimant who had entered into a written agreement with the registered owner for purchase of the land and took possession of the land just as in the present case, the court of appeal held inter alia, that-;The Court of Appeal further stated-;
53.In this case, the plaintiff testified that he took possession upon executing the agreement for sale and later cleared the balance of the purchase price. There was no evidence adduced to challenge these assertions as the defence never adduced any evidence. I am therefore satisfied that based on the uncontroverted evidence given by the plaintiff, the plaintiff has acquired a portion of the suit land measuring 0.25 acres.
54.Counsel for the defendant submitted that the plaintiff’s claim must fail because the entry of the plaintiff was with the permission of the defendant as the registered owner on the strength of the said agreement for sale. However, the plaintiff’s cause of action, in my view, arose not from the agreement of sale but from the claim of adverse possession under the Limitation of Actions Act, Cap 22 Laws of Kenya. In this case, the plaintiff testified that he immediately entered the land upon the execution of the sale agreement on 6th February, 1997 and that he was still in possession and occupation as at the time of filing suit on 7th August 2012. That was a period of about 15 years. There was no evidence tendered by the defence challenging the evidence adduced by the plaintiff. I am therefore convinced that on a balance of probabilities, the plaintiff has proved his case for adverse possession. The plaintiff proved that the defendant had either been dispossessed or had discontinued possession of the suit land measuring 0.25 acres for a continued statutory period of twelve (12) years.
55.Considering the totality of the evidence availed in this case, and applying the legal principles as outlined above, I am satisfied that the plaintiff has proved his case on a balance of probabilities. It is my finding that the plaintiff has brought himself within the limits of the doctrine of adverse possession. Presented before this court is undisputed and uncontroverted evidence by the plaintiff.
56.I find that the originating summons dated 6th August 2012 has merit and is hereby allowed. I enter judgment as follows:a.That the plaintiff is hereby declared to have become entitled by virtue of adverse possession of 0.25 acres of land reference No. NKUENE/KITHUNGURI/1584b.The plaintiff is entitled to be duly registered as proprietor of the said portion measuring 0.25 acres out of LR NO. NKUENE/KITHUNGURI/1584.c.Costs of the suit are awarded to the plaintiff.
DATED SIGNED AND DELIVERED AT MERU THIS 7TH DAY OF DECEMBER, 2022In the presence of:Court Assistant – KibagendiWambua for plaintiffMuriithi for defendantC.K YANOJUDGE