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Amoni & 20 others v Guhad & another (Environment & Land Case 1357 of 2014) [2023] KEELC 360 (KLR) (26 January 2023) (Judgment)
Neutral citation:
[2023] KEELC 360 (KLR)
Republic of Kenya
Environment & Land Case 1357 of 2014
LN Mbugua, J
January 26, 2023
Between
Sylvanus Mukatsa Amoni
1st Plaintiff
George Juma Odongo
2nd Plaintiff
John Okello Waka
3rd Plaintiff
James Gitau Mbugua
4th Plaintiff
Edward Kamau Gitau
5th Plaintiff
Joseph Kanyingi Ndirangu
6th Plaintiff
Joseph Gacheru Maina
7th Plaintiff
Francis Maina Njuguna
8th Plaintiff
Dennis Owino Waka
9th Plaintiff
Stephen Njuguna Waiganjo
10th Plaintiff
Charles Karanjah
11th Plaintiff
Geoffrey Ojunga Juma
12th Plaintiff
Tony Thuo Mwanga
13th Plaintiff
Stephen Kamau Mwangi
14th Plaintiff
Finny Ouma Odoyo
15th Plaintiff
Jackton Amunga Jacquez
16th Plaintiff
William Ngare Mwangi
17th Plaintiff
Evans Ocyama Nyabola
18th Plaintiff
Anthony Kamau
19th Plaintiff
Julius Mwasya
20th Plaintiff
Noah Owaka Aguyo
21st Plaintiff
and
Said Mohammed Guhad
1st Defendant
Harrison Kabiru Mugo
2nd Defendant
Judgment
1.Vide the originating summons dated October 23, 2014, the Plaintiffs claim that they have become entitled to all that parcel of land comprised in Plot No. 36/111/151 (the suit land) in Eastleigh Section 3 Nairobi by way of adverse possession. The Originating summons was based on the supporting affidavit of the 1st Plaintiff who deponed that on or around 1972 his father and other Plaintiffs occupied the suit land where they commenced mechanic businesses. That the suit plot was left to them by one Jayant Kumar Jamnadas Reparel and they have been in continuous occupation thereof since 1972, a period exceeding 12 years.
2.The 1st Defendant opposed the suit by way of his Replying Affidavit sworn on 26/7/2017, where he avers that he is the legally registered owner of the suit land, having purchased the same from the 2nd Defendant on May 4, 2012.
3.The 2nd defendant did not file any pleading but he gave evidence as a witness for the 1st defendant.
4.The matter was heard by way of viva voce evidence. PW1, Joseph Gacheru Maina, the 7th Plaintiff testified that the suit property belonged to an Asian by the name Kumar Jamnadas Ruparel. To this end, he produced a memorandum of registration of transfer of lands dated February 11, 1970 as P. Exhibit 1 depicting the said Ruparel as having bought the suit land from one Naurata Ram.
5.It was his testimony that they entered the suit land in 1972 after Ruparel invited 15 of them unto the land. Ruparel then left for India and never came back. The plaintiffs continued to occupy the land, adding that the 2nd Defendant was one of them and he used to do wiring.
6.Pw1 further testified that they occupied the property for a period of over 50 years without anyone claiming title to or ownership until 2014 when a Mr. Mwangi entered thereon claiming that the suit property had been sold to a Somali by the name Said Mohammed Guhad, and that the 2nd Defendant had procured papers showing he had conveyed the suit land to the 1st Defendant. Thereafter, the 2nd defendant parked his things and left the suit land prompting the Plaintiffs to move to Court to challenge these turn of events, they also reported the matter to the police.
7.Pw1 produced P. Exhibit 2(a) and 2 (b) which are photographs of motor vehicles to show that the Plaintiffs carried on mechanic works on the suit property.
8.On cross examination, Pw1 stated that he does mechanic work on the suit property but he did not have a County Government license. He further stated that he is now 83 years old and he used to work for Ruparel as a cleaner and caretaker. He had no document to show that Ruparel left them the suit land. He added that the original occupants were 15, but some died but their children continued to occupy the land. He identified some of the original occupants as himself, the 2nd, 3rd, 4th, 5th, 6th, 8th, 17th, 18th, 19th, 20th and 21st plaintiffs. He further stated that one Michael Maina was one of them but he was compromised while the 2nd Plaintiff was not among the original 15 but his parent was. The 2nd Defendant was also one of them but he fraudulently sold the suit land and they learnt of the illegal transaction when auctioneers came to the suit property.
9.PW2, James Gitau Mbugua, the 4th Plaintiff testified that he is one of the mechanics who have been occupying the suit land and has been there for 20 years. His entry on that land was in 1985, but he left and went upcountry, then went back to the suit land in 1990. He further stated that they are claiming title to the suit land because they have stayed there for long.
10.On cross examination, Pw2 stated that he is 56 years old, that he entered the suit land in 1985 and the registered proprietor left in 1972. That the 2nd Defendant was one of them but he cannot tell if he had a title or not. He confirmed that he is currently in occupation of the suit property.
11.DW1 Harrison Kabiru Mugo is the 2nd Defendant. He told the court that he was born in 1962, and that he entered the suit land in 1980 as a mechanic, and by then, there was nobody on the suit property. In 1999 James Mwangi Gacheru sold to him the suit property and he produced a copy of the conveyance to that effect as Defence exhibit 1.
12.He also testified that some of the plaintiffs have never stepped on the suit property while the rest were his casual workers. To this end, he does not know the 1st 5th 10th 12th 14th 19th 20th and 21st plaintiffs. He added the 6th Plaintiff is a young man who started working for him recently, while the 7th Plaintiff used to be on Kirinyaga road until recently. He recognized James Gitau as the only one who had been in the suit property since 1985, who was occupying the land as a licensee of Dw1.
13.It was also his testimony that he sold the suit land to the 1st Defendant and gave him the title documents.
14.On cross-examination, Dw1 stated that he does not know Jayant Kumar but he knows some of the Plaintiffs, of which, two were in court. He further stated that he entered the suit property in 1980 and purchased it in 1999 and that between 1980 and 1999, he was on the suit property with the permission of the owner, one James Mwangi Gacheru. Only one or two Plaintiffs were on the suit property, one being James Gitau, but he left in year 2012.
15.He also stated that he last visited the suit property in year 2012 when he sold the land. He does not know the current status though he knows there is no garage there.
16.DW2, Said Mohamed Guhad is the 1st Defendant. He adopted his Replying Affidavit sworn on July 26, 2017 and the 6 annexures thereof as his evidence. He also produced an official search dated December 6, 2021 as D. Exhibit 7. The same indicates that the current registered owner of land parcel 36/111/151 (suit property) is the 1st defendant.
17.On cross examination, Dw2 stated that before he purchased the suit property, he had visited the same and had found a garage thereon. That after the purchase, the mechanics who were operating the garage declined to move out and instead moved to court. When re-examined, he stated that the mechanics are still on the suit property due to this case.
18.On December 5, 2019, the court issued witness summons to the Chief Land Registrar to attend court and produce records relating to the ownership of the suit property from 1972 to date. In that regard, one Gildine Gatwiri Karani, a Principle Land Registrar testified and produced a current search for Plot No.36/iii/151 which indicated that the current proprietor is the 1st Defendant and a copy of the volume register showing an indenture of conveyance dated February 3, 2012 to the 1st Defendant. Other documents availed by the Land Registrar include a volume of conveyance dated August 19, 1999 to the 2nd Defendant, conveyance dated 3rd February 2012 for registration to the 1st Defendant and the indenture of conveyance between the 1st and 2nd Defendants.
19.On cross-examination, the Land Registrar stated that these were the documents she could trace in the GLA file. However, there were documents which were tattered and volumes which were missing. There were no documents of 1972 in the file.
20.The submissions of the plaintiffs are dated November 11, 2022 where they aver that in line with the provisions of Section 38(1) and (2) of the Limitation of Actions Act, the title of the owner of the suit land has been extinguished, and they are now entitled to the said land by way of adverse possession. Relying on the case of Kasuve v Mwaani Investment Limited & 4 others 1KLR 184, they submitted that they have been in open, un interrupted occupation of the suit land for more than 12 years. They pointed out that DW1 stated that he entered the land in 1985 yet the conveyance in his favour is dated 1999, therefore even if the court is to take his averments as the truth, the Defendants’ claim still fails since the Plaintiffs had already occupied the suit land for more than 12 years from 1985.
21.They further submitted that after obtaining a conveyance in 1999, the 2nd Defendant did not evict the Plaintiffs and by the time he sold the land to the 1st Defendant, another 12 years had lapsed.
22.It was also submitted that the conveyance to the 2nd defendant was fraudulent and the root of his title was not explained, thus his title stands as impeached. To this end, the cases of Propwa Company Limited v Justus Nyamo Gatondo & another [2020] eKLR and the case of Daudi Ledama Morintat v Mary Christine Kiarie & 2 others [2017] eKLR were proffered.
23.The 1st Defendant’s written submissions are dated April 22, 2022.It was submitted that according to the case of Gabriel Mbui v Mukindia Maranya [1993] eKLR, a party invoking the doctrine of adverse possession must prove; open and notorious use of the property, continuous use of the of the property, exclusive use of the property and actual possession of the property, but the Plaintiffs have failed on all the aforementioned required elements.
24.It was further submitted that all along, the plaintiffs were working for the 2nd defendant, hence they had the consent of the 2nd defendant to be on that land. Thus the 2nd defendant was never dispossessed of his land by the Plaintiffs, and even after the sale of the land by the 2nd defendant to the 1st defendant, the latter was not discontinued or dispossessed of the said land. To this end, reliance was made to the cases of Ruth Wangari Kanyagia v Josephine Muthoni Kinyanjui [2017] eKLR and the case of William Kipnyor Rotich v Paul Kiprop Karoney [2021] eKLR.
25.The issue for determination is whether the Plaintiffs are entitled to the suit land through the doctrine of adverse possession.
26.The doctrine of adverse possession is underpinned in the statute, where under Section 38(1) of the Limitation of Actions Act, it is stated that;
27.The Court of Appeal in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] eKLR, set out what a party claiming an interest by way of adverse possession must prove. The court stated that;
28.In Mate Gitabi v Jane Kabubu Muga Alias Jane Kaburu Muga & 3 Others [2017] eKLR, the Court of Appeal stated that:
29.In Samuel Kihamba v Mary Mbaisi [2015] eKLR, the Court of Appeal stated that;
30.Have the Plaintiffs met the above criteria set out in the statute and case law?. PW1 has given an account of how they entered the suit land upon the invitation of one Jayant Kumar Jamnadas Ruparel, of which they produced a Memorandum of Registration of transfer of the suit land dated February 11, 1970 from Naurata Ram son of Mai Ditri Ram to Jayantkumar Jamnadal Ruparel. No evidence has been availed by the defendants to challenge the registration of the suit land in Rupparel’s name as at 1970. As for the Land Registrar, her evidence was that their file was incomplete, thus they had no records regarding ownership of the suit land from 1970 to 1999. There is also no evidence of how James Mwangi Gatheru became the owner of the land, so as to sell the same to the 2nd defendant.
31.Pw1 stated that Ruparel left the suit land in 1972, never to return and he left the plaintiffs on the suit land. Therefore, from 1972 when Ruparel discontinued possession to 1984, 12 years had lapsed, enough time for the claim of adverse possession to mature.
32.DW1 testified that the 4th Plaintiff entered the suit land in 1985 as his licencee. If indeed the land was registered in James Mwangi Gacheru’s name as per the claim of Dw1, then the 4th Plaintiff would have sought a Licence from Gatheru and not Dw1 in 1985. There is no evidence that as at 1985, the suit land was registered to James Mwangi Gacheru whom the 2nd Defendant claims to have purchased land from.
33.Dw1 claims to have entered the suit land in 1980 as a mechanic, an averment in tandem with Pw1’s evidence that indeed Harrison Kabiru Mugo was one of them, the mechanics who had settled on the suit land. And according to Pw1, Harrison only left the land after he irregularly sold it to the 1st defendant.
34.Plaintiff Exhibit 2a and 2b depict a garage. DW2 also confirmed that he visited the suit land before the purchase and he found a garage on it. There is no evidence that the garage was the 2nd Defendant’s business and that he had employed some of the Plaintiffs as alleged by Dw1. If indeed the garage belonged to Dw1, he would have evicted the Plaintiffs in 1999.
35.As the matter stands Dw2 (1st defendant) was unable to remove the occupants of the garage after he bought the land. This is what he told the court during cross examination;
36.It is worthy to note that Dw2 does not refer to the occupants of the suit land as employees of the 2nd defendant. Dw1 had also stated as follows during his evidence in chief;
37.What resonates from the foregoing evidence is that the occupation of the suit land by the plaintiff was not interrupted by the defendants, despite the apparent seedy change of ownership of the land over the decades through the hands of one Gatheru, to Harrison and eventually to Guhad. Further, the said occupation of the land by the plaintiffs did manifest unmistakable animus possidendi, that is occupation with the clear intention of excluding the owner and all other persons from that land, that it is why the plaintiffs stayed put and even resulted to filing the suit and even reporting the matter to the police when they got wind that 1st defendant had bought the land.
38.In the case of Maweu Vs Liu Ranching & Farming Cooperative Society Limited, [1985] KLR 430 at 434, the court stated that any man who buys land without knowing who is in possession of it risks his title. This is exactly what the 1st defendant did, buying land without ascertaining the nature and extent of the rights of the occupants of the said land. In any event the mere change of ownership of the land which is occupied by another under Adverse Possession does not interrupt such person’s adverse possession – see Githu v. Ndeete [1984] KLR 776. Thus the change of ownership of the suit land through the decades does not in any way affect the plaintiffs claim of adverse possession on the said land.
39.In conclusion, I find that the plaintiffs have proved their claim on a balance of probabilities. I therefore enter judgment against the defendants jointly and severally as follows;1.It is hereby declared that the plaintiffs are entitled to the land parcel no. 36/111/151 by way of adverse possession.2.An order is hereby issued for the cancellation of the 1st defendant Said Mohamed Guhad as the registered owner of parcel 36/111/151 and instead, the plaintiffs and or their appointed legal representatives are to be registered as the owners of the said land.3.Each party is to bear their own costs of the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JANUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Mohamed Maulid holding brief for Abdiaziz for the DefendantCourt assistant: EddelELC CASE NO.1357 OF 2014 (O.S) (JUDGMENT) Page 8 of 8
