Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased).) v Mukolwe & 2 others (Sued as the Administrators of the Estate of David Nyambu Kituri - Deceased) & another (Civil Application 4 of 2018)  KECA 141 (KLR) (17 February 2023) (Ruling)
Neutral citation:  KECA 141 (KLR)
Republic of Kenya
Civil Application 4 of 2018
HM Okwengu, J Mohammed & S ole Kantai, JJA
February 17, 2023
Nancy Wambui Waweru
Suing on behalf of the Estate of Mwangi Kioi (Deceased).
Winnie Mukolwe, Juliah Kirira & Hope Mutua (Sued as the Administrators of the Estate of David Nyambu Kituri - Deceased)
Lucy Wanjiku Muchai t/a Bellavin Investments
(Being an application for leave to appeal to the Supreme Court against the Judgment and decree of the Court of Appeal at Nairobi (Ouko, Gatembu & M’Inoti, JJ.A.) delivered on 16th February 2018 in Civil Appeal No. 218 of 2017)
1.What is before us is a notice of motion dated 27th February 2018 brought under Article 163 (4)(b) of the Constitution, section 3A & 3B of the Appellate Jurisdiction Act, Rule 24(1) of the Supreme Court Rules, and Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules. The applicants Christopher Kioi & Nancy Wambui Waweru suing on behalf of the estate of Mwangi Kioi seek orders to have their intended appeal to the Supreme Court certified and leave granted for them to appeal to the Supreme Court.
2.The applicants also seek orders of injunction restraining the respondents, their servants, or agents from alienating, disposing of, or in any other manner dealing with the title in property known as LR. No. 10090/24 located in Juja (hereinafter referred to as the suit property), or interfering with the applicants’ possession of the said property, pending the hearing and determination of the intended appeal.
3.The application is anchored on grounds stated on the face of the motion and an affidavit sworn by Christopher Kioi on 27th February 2018. In brief, litigation was ignited by an Originating Summons filed by the applicants in the High Court in which they sought various orders against the respondents, including, a declaration that title held by David Nyambu Jonathan Kituri (deceased) over the suit property has been extinguished by adverse possession, that the applicants are entitled to be registered as the legal and beneficial owners of the suit property, and that an injunction order do issue restraining the 1st respondents from alienating, disposing or in any other manner interfering with the applicants’ possession of the suit property.
4.The High Court by a judgment delivered on 27th January 2017 dismissed the applicants’ action, on the grounds that they had failed to prove adverse possession. Subsequently, the applicants appealed to this Court, and this Court having heard the appeal, upheld the decision of the High Court and dismissed the appeal.
5.The applicants who are aggrieved by the judgment of this Court wish to appeal to the Supreme Court. They contend that the intended appeal raises grave and substantive matters of law that are of public interest, some of which they identify as follows:i.The proper and sound meaning of the doctrine of adverse possession under sections 7, 13, 17 and 38 of the Law of Limitation Act (sic).ii.The proper and sound interpretation of the parameters of the doctrine of adverse possession in relation to a purchaser of land where the purchase price under the sale agreement is paid in full but the sale is not completed.iii.What constitutes adverse possession?iv.Where a purchaser takes possession of a property pursuant to a sale agreement, when does the possession become adverse?v.Does adverse possession amount to a right to the property under Article 40 of the Constitution of Kenya 2010?”
6.The applicants argue that Mwangi Kioi (deceased) had been in possession of the suit property for over 39 years and therefore the respondents would not suffer any irreparable harm or damage if an order of injunction is granted, nor would the respondents suffer any prejudice.
7.In their written submissions dated 31st March 2022, the applicants submit that there is need for clarity on what amounts to adverse possession and statutory interpretation, in light of section 7, 13, 17 and 38 of the Limitation of Actions Act, and urge the Court to take the opportunity of the appeal to clarify the position of adverse possession as juxtaposed with the right to property, provided in Article 40 of the Constitution. They argue that the intended appeal meets the threshold of a matter of general public importance as per the definition and the test set out by the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone  eKLR (Hermanus Phillipus Steyn decision).
8.Further, the applicants submit that due to the sentimental and emotive nature of the value attached to land in Kenya, sections 7, 13, 17 and 38 of Limitation of Actions Act should be examined in light of Article 40 of the Constitution, so as to come up with sound interpretation of the parameters of the doctrine of adverse possession where a purchaser of land has paid the purchase price in full but the sale is not completed.
9.The applicants relied on Murai vs Wainaina (No. 4 Civil Application No. Nai 9/1978), that was cited in the Hermanus Phillipus Steyn decision, that an appeal touching on the subject of land rights, is of public importance as its outcome will not only affect parties to the appeal, but will also affect a large number of original land owners by depriving them, causing them social and economic upheaval; that Article 40 on ownership of rights bears a public law connotation and it is to be treated as such; and that the phraseology employed in Article 163(4)(b) of the Constitution “matter of general public importance” places on the Supreme Court a broad discretion, which includes a point of law of general public importance.
10.The applicants pointed out that the question of adverse possession arose in the High Court and was a subject of determination in both the High Court and the Court of Appeal. Finally, the applicants urged that if leave was granted, it would be in the interest of substantive justice for the Court to grant an injunctive order to prevent the wasting away of the suit property.
11.The 1st and 2nd respondents who are the administratrix of the estate of David Nyambu Kituri (deceased), opposed the application through an affidavit sworn by Winnie Mukolwe, and written submissions that were duly filed. Their position was that the Supreme Court has fully pronounced itself on the issue of adverse possession in Malcolm Bell vs Daniel Toroitich Arap Moi & Anor  eKLR (Malcolm Bell decision), and categorically ruled that the subject of adverse possession has been sufficiently settled in law and does not require the intervention of the Supreme Court. This position was reiterated in Paul Khakina Musungu vs Joseph Chebayi Chesoli & Anor  eKLR.
12.The 1st respondent argued that in any case, the applicants’ motion does not meet the test for certification set out by the Supreme Court in the Hermanus Phillipus Steyn decision. They argued that the appeal before the Court is a contest over ownership of the suit property which is registered in the names of the 1st respondents as administratrix of the estate of David Jonathon Nyambu Kituri; that the applicants’ suit for adverse possession in regard to the suit property was dismissed by the High Court as the applicants failed to prove that they had dispossessed the 1st respondents from the suit property, or that they had uninterrupted possession of the property for a period of 12 years, and this finding was upheld by the Court of Appeal. The 1st respondents pointed out that the applicants’ contention that they have been in occupation of the suit property since 1969, raises a contest on the issue of facts which contest cannot be a basis for granting certification.
13.The 1st respondents argued that there was no controversy on the construction of section 7, 13, 17 and 18 of the Limitation of Actions Act or their interplay with adverse possession in the superior courts, nor were the parameters of adverse possession in relation to a purchase in a sale agreement canvassed, as the applicants abandoned their claim to the property pursuant to a purchase, and focused on adverse possession; that the interplay between adverse possession and Article 40 of the Constitution was also not canvassed in the superior courts; and that the issues raised by the applicants were neither determined by the Court of first instance nor this Court, but have been raised as:
14.Further, the 1st respondents argued that the applicants have failed to demonstrate how the dispute transcends the facts of the case before the Court, and how public interest will be served by admitting the appeal. This is in light of the fact that the only error identified by the applicants in the judgment of the Court, is the failure by the Court to address itself on the applicability and parameters of the doctrine of adverse possession. That as pointed out by the Supreme Court in its Malcolm Bell decision (supra), the appellate jurisdiction of the Supreme Court cannot be invoked merely for the purpose of rectifying errors with regard to matters of settled law.
15.Finally, on the prayer for an injunction, it was submitted that the same was misconceived and untenable in law as this Court has no jurisdiction before certification to issue an injunction after delivery of a judgment, as the Court is functus officio on the matter, save for the sole question of certification. In this regard, the 1st respondents relied on Dickson Muricho Muriuki vs Timothy Kagondu Muriuki & 6 others  eKLR and Rose Jebor Kipngok vs Kiplagat Kotut  eKLR. The Court was urged to note the fact that the respondents have never enjoyed their inheritance on the suit property for over 25 years, and therefore dismiss the motion.
16.The 2nd respondent who had been joined in the proceedings in the High Court as an interested party because she had entered into an agreement with the 1st respondents to purchase the suit property, also filed written submissions in an effort to protect her purchaser’s interest in the suit property. She maintained that the intended appeal does not raise any issues of general public importance; that the applicants have failed to fulfill the seven governing principles in determining a matter of general public importance as set out in the Hermanus Phillipus Steyn decision; and that the issue of what constitutes adverse possession is one that is expressly set out in statutes and has been subject of countless judicial pronouncements.
17.The 2nd respondent further argued that the question regarding when a purchaser takes possession of a property pursuant to a sale agreement, and when possession becomes adverse, does not require the intervention of the Supreme Court as it is obvious that a claim for a purchaser’s interest and a claim for adverse possession are separate and distinct. In addition, no substantial point of law has been raised by the applicants whose determination would have a significant bearing on the public interest, nor is there any uncertainty created by the impugned judgments of the High Court and the Court of Appeal, that would necessitate the Supreme Court to clarify for the benefit of the general public.
18.The 2nd respondent argued that the Supreme Court in its Malcolm Bell decision ruled out questions touching on adverse possession, from qualifying as questions of general public importance. Finally, the 2nd respondent urged that all the five points which the applicants claimed disclose matters of general public importance revolve on the issue of adverse possession, which has already been conclusively determined by two competent courts.
19.In the Hermanus Phillipus Steyn decision, the Supreme Court at paragraph 60 of the decision set out the following criteria for identifying a case as one involving a matter of general public importance under Article 163(4) (b):
20.We have already set out at paragraph 5 above what the applicants believe are substantive matters of law that are of general public importance, that in their view merit certification of the intended appeal as worthy of the Supreme Court’s appellate jurisdiction under Article 163(4)(b). We find it necessary to examine these issues in light of the judgment of the Court of Appeal to determine whether they meet the threshold set in the Hermanus Phillipus Steyn decision.
21.Our starting point is the originating summons that was filed in the High Court a copy of which was annexed to the applicants’ motion under consideration. We reproduce herein verbatim the core of the applicants’ claim as pleaded in the originating summons, and captured in the substantive prayers as follows:
22.The applicants sought a declaration that the title of Kituri (deceased) to the suit property had been extinguished by adverse possession of the suit property by Mwangi Kioi (deceased), and that the applicants were entitled to be registered as the legal and beneficial owners. The facts relied on were that Mwangi Kioi (deceased) entered into a sale agreement with Kituri (deceased) for the sale of the suit property, and obtained the land control board consent after paying the full purchase price. However, the property was never transferred to Mwangi Kioi (deceased) because Kituri (deceased) did not have a grant. In 1970 Mwangi Kioi (deceased) dispossessed Kituri (deceased) from the suit property and thereafter, publicly and as of right exercised all acts of ownership until he died and his estate took over.
23.The High Court in its judgment identified the issues for determination as follows:
24.The High Court considered the law governing a claim for adverse possession as provided under sections 7 and 38 of the Limitation of Actions Act, adverse possession as defined in Blacks’ Law Dictionary, and case law including Wambugu vs Njuguna  KLR 172, Teresa Wachuka Gachira vs Joseph Mwangi Gachira  eKLR, and Kimani Ruchinevs Swift Rutherford & Co Ltd  KLR.
25.The High Court also considered the issue of sanctity of title stating in part as follows:
26.Upon applying the law to the facts before it, the High Court concluded in part as follows:
27.In their appeal to this Court against the judgment of the High Court, the applicants raised 12 grounds that were captured by this Court in the judgment of 16th February 2018 as follows:
28.This Court in its judgment of 16th February 2018, rendered itself as follows in regard to the interpretation of sections 7, 13, 17 and 38 of the Limitation of Actions Act:
29.As expounded by the Court in its judgment, the provisions of sections 7, 13, 17 and 38 of the Limitations of Actions Act are clear. Those sections are not complicated nor do they require any serious argument or interpretation to deduce that they address the issue of adverse possession, and when a registered owner can be dispossessed of land by adverse possession. There is no grey area arising from those provisions in regard to the proper meaning of the doctrine of adverse possession.
30.The issue before the High Court and the Court of Appeal was simply whether the applicants had acquired the suit property by adverse possession, and conversely, whether the respondents’ title had been extinguished. Both the High Court and this Court addressed the issue of adverse possession as affecting the rights of the respondents as the registered owner of the suit property, and the applicants as the alleged legal and beneficial owner of the suit property by virtue of adverse possession. The issues that the applicants have listed as matters of law that are of public interest revolve on rights arising under adverse possession.
31.The Supreme Court in the Malcom Bell decision addressed the issue whether a claim involving the question of adverse possession could be the basis for certifying a matter as being of general public importance to warrant certification of an appeal arising therefrom. The Supreme Court ruled that the adverse possession question is a subject that has been sufficiently settled in law, and is no longer a proper subject or a matter of general public importance appropriate for that Court’s appellate jurisdiction. The Supreme Court concluded that:
32.One of the issues the applicants have raised as a substantial issue of law that they intend to canvas in the Supreme Court is whether adverse possession amounts to a right to property under Article 40 of the Constitution. In the Hermanus Phillipus Steyn decision (supra), the Supreme Court held that an issue intended to be raised before it as a substantial point of law having a significant bearing on public interest must be one that arose in the courts below and has been the subject of judicial determination. We have perused the originating summons, the judgment of the High Court and the judgment of this Court, and do find that this issue was not canvased in any of the two courts, nor did the two courts render their opinion or determination on the issue. Thus, the question does not meet the threshold to be a matter of general public importance worthy of the Supreme Court’s appellate jurisdiction.
33.We come to the conclusion that the applicants have not convinced us that there is any substantial question of law or matter of general public importance, the determination of which transcends the dispute between the applicants and the respondents. For these reasons, we find that the applicants have not met the threshold for certification of the appeal as appropriate for consideration in the Supreme Court.
34.Accordingly, we decline to certify the intended appeal as one raising a matter of general public importance fit for appeal in the Supreme Court. The application is accordingly dismissed with costs.
DATED AND DELIVERED AT NAIROBI ON THIS 17TH DAY OF FEBRUARY, 2023.HANNAH OKWENGU…………………JUDGE OF APPEALJ. MOHAMMED…………………JUDGE OF APPEALS. ole KANTAI…………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRARPage 1 of 21