|Civil Case 812 of 1997
|ROSEMARY WAMAI v ROSEMARY POULTRY FARM LTD
|11 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Aggrey Otsyula Muchelule
|ROSEMARY WAMAI v ROSEMARY POULTRY FARM LTD  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE NO. 812 OF 1997 (0.S)
V E R S U S
J U D G M E N T
In the final subdivisions, the Plaintiff’s counsel Mr. Nyaga indicated that the suit was based on adverse possession; that the Plaintiff has had since 1979 been in exclusive, uninterrupted and notorious occupation of the plot and therefore has become entitled to it by adverse possession. Quite rightly, and as was pointed out by the defence counsel Mr. Mugambi, the Plaintiff’s own affidavit and testimony indicate she has all the time been here on permission from the Defendant because she bought the plot from it. It is trite that an applicant who enters the respondent’s land not as a trespasser but with the consent/permission of the respondent as a licencee cannot successfully bring an action founded on adverse possession against the respondent (Lukas Maina Mugo –Vs- Tabitha Muthoni, HCCC No. 238 of 2001 at Nyeri). It is also notable that the originating summons makes no reference to adverse possession. The Plaintiff did not bring the suit under section 38 of the Limitation of Actions Act (Cap. 22) or Order 36 rule 3D of the Civil Procedure Rules.
The Plaintiff agrees she was not a member and says that Ng’ang’a Gacau, a member, did not have KShs. 1,500/= that was required for the plot. He asked that she pays the amount and said that he was going to refund half of it, that is KShs. 750/=. She paid the KShs. 1,500/= to the Defendant and the two got a share certificate showing they jointly owned the plot. Up to that point, I find, the Plaintiff was entitled to half of the 60ft x 80ft plot which would be 30ft x 80ft. She says the said Ng’ang’a Gacau disappeared and she has not seen him since and he has not refunded her KShs. 750/=. She would have to sue him to recover the amount, but cannot, unless she has a claim against him, say that she has become the owner of the entire plot.
It is common ground that there was an advertisement by the Defendant recalling share certificates that had earlier been issued. The Defendant says the Plaintiff did not return it, but Plaintiff says she returned it to the chairlady of the company and that she was left with a copy. This copy still shows she owns the plot with Ng’ang’a Gacau, but the Defendant says Ng’ang’a Gacau sold his share to Muiruri. The Defendant produced survey map, advertisement, share certificate, minutes, extracts, etc, (“JG1 (a) – (i)”) to support its evidence.
The result is it is declared that the Plaintiff jointly owns 33ft x 80ft comprised in plot No. 184 with Muiruri. It is made clear that the exact site is where the Plaintiff has residence. I ask that costs of the suit be paid by the Defendant.
DATED, PRONOUNCED AND DELIVERED AT NAIROBI THIS 11TH DAY OF APRIL 2011
A. O. MUCHELULE
J U D G E