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Sefu v Haji (Environment & Land Case 183 of 2017) [2023] KEELC 19893 (KLR) (22 September 2023) (Judgment)
Neutral citation:
[2023] KEELC 19893 (KLR)
Republic of Kenya
Environment & Land Case 183 of 2017
EK Makori, J
September 22, 2023
IN THE MATTER OF LAND PARCEL NO. KILIFI/JIMBA/318
REGISTERED UNDER CAP 300 (REPEALED) LAWS OF KENYA
AND
IN THE MATTER OF SECTION 38 OF THE LIMITATION OF
ACTIONS ACT CAP.22 LAWS OF KENYA
AND
THE MATTER IN OF AN APPLICATION FOR DECLARATION
THAT THE APPLICANT HAS OBTAINED TITLE OVER THE SAID
LAND PARCEL NO. KILIFI/JIMBA/318 BY ADVERSE
POSSESSION
Between
Kazungu Chengo Sefu
Applicant
and
Ahmed Madhi Haji
Respondent
Judgment
1.The Applicant filed this suit by way of Originating Summons stating that his constitutional right under Article 40 was under threat by the Respondent - the suit premises being Kilifi/Jimba/318 measuring approximately 0.7 hectares.
2.It was the Applicant’s evidence in chief that he had acquired the suit property by way of adverse possession having lived therein for a period spanning over 23 years well beyond the statutory period of 12 years as required under the Limitation of Actions Act.
3.The Applicant sought 4 prayers:a.That the Applicant is entitled to be declared as proprietor of the land parcel known as Kilifi/Jimba/318 which he acquired by adverse possession, having lived and worked thereon for over 23 years since late 1993 well beyond the statutory 12 years and used it peacefully and uninterrupted without any interference from the Respondent and in particular his agents/predecessors.b.That the Applicant is entitled to be registered and issued with a certificate of title over the same in place of the Respondent.c.That in the interim the Respondent be restrained by way of injunction from alienating, sub-dividing, taking possession, or in any manner, whatsoever interfering with the said parcel of land until the suit herein is determined (spent).d.That the Applicants be granted costs of the suit.
4.The Applicant particularized his activities on the suit premises through his 25-paragraph supporting affidavit dated 15th August 2017 and relied on documents annexed thereto.
5.The Plaintiff deponed that he had gathered and developed the suit premises some 23 years before - up to the time of filing this matter in 2017. The Applicant stated that he gave vacant possession to the Respondent through duress and or undue influence by way of a compensation note dated 17th August 2009 which was executed at Watamu Police Station.
6.That the following day i.e. 18th August 2009 the Applicant sought quality professional services of the current counsel to have the sum of Kshs. 40,000/= paid by the Respondent to the Applicant on 17th August 2009 refunded from the said Advocates (who are still holding the said amount to date).
7.It is the Applicant’s evidence in chief that his name was indeed captured in several land committees established by at least three Ministers courtesy of the Jimba Land Committee’s recommendation. He questioned how the Respondent obtained his title to the land in question and attributed it to fraud. He asserted that he was the one who ought to have been allocated the land in question.
8.The Respondent testified and said that he purchased the land in question as evidenced by a sale agreement dated 24th March 2009 from one Chagawa Kahindi Jefwa. The Applicant who was a squatter in that land was compensated as evidenced by a note dated 17th August 2009 whereby it was agreed he be compensated for the temporary structure placed on the land in question. Thereafter the land was transferred into his name and the title was issued in the year 2010 and he took vacant possession of the land without let or hindrance. Since then he has been in quiet possession of the same.
9.The Respondent averred that other squatters on the land were equally compensated and left never to return to the land to date.
10.That after he was compensated, the Applicant has never returned to the suit land having removed his structures.
11.In his submissions, the Applicant averred that one acquires land through adverse possession when one gains stays, or occupies land without opposition for 12 years. The Law requires that the occupation must be open and notorious, exclusive, hostile and continuous, and uninterrupted for the said prescribed period. The Applicant cited the case of Bendera Karisa Karima (Suing as the Administrator of Samson David Magambo) v Kenya Airways Limited [2017] eKLR where Angote J. stated that:He further said:
12.The Respondent submitted that the doctrine of adverse possession is encapsulated in Section 7 and Section 17 of the Limitations of Actions Act Chapter 22 of the Laws of Kenya. Section 7 of the Act provides as follows:While Section 17 of the Act provides as follows:
13.The Respondent submitted that given the provisions of Sections 7 and 17 of the Limitations of Actions Act Chapter 22 of the laws of Kenya as read with the provisions of Sections 107, 108, and 109 of the Evidence Act Chapter 80 of the Laws of Kenya the onus is on the Applicant to demonstrate that the Respondent had lost the right to bring an action to recover the suit land on account of the Applicant being in quiet and continuous occupation and use of the suit land in a manner inconsistent with the Respondent's title for 12 years or more.
14.That it is also the law that for an Applicant to succeed in a claim for adverse possession of land the Applicant must first recognize that the registered owner of the suit land is the true owner. For this proposition of the law, the Respondent relied on the decision in the case of Ravindranath Dahybhai Bhagat v Hamisi Harod & 5 others [2014]eKLR in which the Court held that an Applicant could not succeed in a claim for adverse possession of land if he does not recognize the title of the Respondent as the registered owner.
15.The Applicant must also prove that he entered the land as a trespasser to hold the land as the owner to the exclusion of the actual owner. He must have animus possidendi over the land. For this proposition of the law, the Respondent placed reliance on the decision in the case of Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR where the Court held that adverse possession is a hostile possession by clearly asserting a hostile title in denial of the title of the true owner. It must start with the wrongful disposition of the rightful owner.
16.The Respondent also relied on the decision in the case of Kweyu v Omutut [1990] KLR 709, quoted with approval in the case of Ravji Karsan Sanghani v Pamur Investment Limited [2021]eKLR for the proposition that the Applicant must prove that he entered the suit land under a claim of right with intent to hold the suit land adversely.
17.I have considered the evidence. Material and submissions by the parties in this case. The issues to decide are whether the Applicant has proved a claim under the doctrine of adverse possession to merit the orders sought in the instant Originating Summons.
18.There has been quite a lot litigated in our courts touching on adverse possession, particularly from our coastal region given absent property owners. The law seems to have crystallized what one needs to prove to succeed in a claim of adverse possession. As correctly submitted by both counsel for the parties, the burden of proof in a claim of adverse possession rests with the Applicant I place my reliance on the sentiments of Kuloba J. (as he then was,) in Gabriel Mbui v Mukindia Maranya [1993]eKLR, where the Court held:
19.The principle of adverse possession is well captured under the Limitation of Actions Act. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued. Further section 13 of the same Act, provides that adverse possession is the exception to this limitation:Finally, Section 38 of the Act provides that:
20.The principle of adverse possession was more elaborately set out in yet another case - Wambugu v Njuguna [1983] KLR 172, where the Court held that:In addition:
21.In this case the Applicant although claiming adverse possession tends to suggest in evidence that he ought to have been registered as the rightful owner of the land in question having been recognized variously as the occupant of the land as averred in his affidavit in support of his claim. It will seem originally this was government land and there was a process undertaken to alienate the same to private individuals and the Applicant has a strong belief he was shortchanged in this process.
22.He admitted that the initial allottee of the land in question – David Changawa, got the title ahead of him and that in the year 2009, he was compensated as evidenced by the agreement produced in this matter. He was actually paid Kshs 40,000/= and as stated by the Respondent he together with other squatters left the suit land. The money he was paid, it is admitted in evidence, lies with his advocate – for whatever reasons! Since he was compensated, he left the land in the year 2009 and filed this matter in the year 2017. It is therefore not true that he has been living on the land in question for the uninterrupted period of 23 years. His undoing or Waterloo is when he agreed to be compensated and left the suit land cutting the cord of continuous and uninterrupted stay on the land in question.
23.Even after filing this suit, he still did not recognize the title of the Respondent because, in paragraph 9 of his supporting affidavit, he stated that the task force ought to have recorded his rights to the suit property. While in paragraph 17 of his supporting affidavit, he stated as follows:
24.That since the Applicant does not recognize the validity of the Respondent's title to the suit property then his claim lies in a suit for cancellation of the title. As held in the case of Ravindranath Dahybhai Bhagat v Hamisi Harod & 5 others[2014]eKLR, as per Angote J:
25.We have the same scenario here. The Applicant seeks to challenge the title held by the Respondent and thinks it was fraudulently obtained in the process of demarcation and surveying. If the Applicant thinks the process was flawed - a suit to cancel the title held by the Respondent would have been appropriate and not an Originating Summons claiming adverse possession.
26.The Applicant concisely has not shown that he has been in the suit land nec vi, nec clam, nec precario, meaning 'without force, without secrecy, without permission.’ See also the holding in Mtana Lewa v Kahindi Ngala Mwangandi [2005] eKLR:In Mbira v Gachuhi [2002] IEARL 137:
27.The Applicant's claim is hereby dismissed with costs.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 22ND DAY OF SEPTEMBER, 2023E. K. MAKORIJUDGE
