Andrew Likaibua Kathuku alias Nguga M’kaibi v Jacob Miriti Kaaria, Daniel Muthamia Kaaria & Peter Kobia M’erimba [2019] KEELC 3859 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC N0. 157 of 2013 (OS)

ANDREW LIKAIBUA KATHUKU

ALIAS NGUGA M’KAIBI.................................................................APPLICANT/PLAINTIFF

VERSUS

JACOB MIRITI KAARIA..................................................1ST RESPONDENT DEFENDANT

DANIEL MUTHAMIA KAARIA.....................................2ND RESPONDENT/DEFENDANT

PETER KOBIA M’ERIMBA.................................................................INTERESTED PARTY

JUDGMENT

1. This suit was filed by way of Originating Summons but subsequently directions were taken to allow taking of evidence proceedings to proceed by way of vivavoce. The terms Applicant and Respondent shall be used to refer to Plaintiff and Respondent respectively.

2. ByOriginating Summons dated 24/6/2013 the Applicant/Plaintiff sued the 1st Respondent/Defendant claiming ownership by way of Adverse Possession over 1. 70 acres of land parcel No. NYAMBENE/KIRINDINE ’A’/4353 (suit land). He sought for orders that: -

a.  A   declaration that   the Plaintiff, Andrew   Laikabua   Kathuku alias   Ngunga M’ Kaibi   has become entitled   by   Adverse    Possession to    0. 69 hectares from all that parcel of land known   as   L.R. NO. NYAMBENE/KIRINDINE ‘A” 4353 registered in the name of SAMUEL   KAARIA.

b.  An order   that the said Plaintiff   be registered as sole proprietor of 0. 69   acres   of   the   suit land   L.R. NO. NYAMBENE/KIRINDINE ‘A” 4353.

c.  An order   that the 1st Defendant   do   execute   all the   requisite instructions and/or   documents to effect transfer to the Plaintiff of the   suit land    and in default   thereto   this Honourable Court   do authorize its   deputy    registrar to so execute the   transfer instruments/documents on behalf of the Defendant.

d.  That   this   Honourable   Court   do make further   or   better orders   it may   deem   fit   and    just to grant   to meet the   orders   of justice.

e.  Cost   of this   suit to be borne   by the   Defendants.

3. The summons   are based  on the grounds that the Plaintiff   has   been in    exclusive, open, Notorious    and continuous   occupation of the   suit land since   1996 and that   the Plaintiff   has made   substantial   developments on the   suit land   by   fencing, building of houses and cultivation thereon   for   a period in   excess of 12   years.

4.  The Plaintiff   has   annexed   a   supporting    affidavit   to the   summons in   which    he   deposes   that he has   been in occupation of   the   suit land since   his     childhood   days in   1948. That   during   the  land   adjudication in 1990’s    he   gathered   his land   being parcel No.3448 which   was 4. 09 Acres registered in   his   name   on 8/2/1996.  He claims that the 1st Defendant in the   year   2000   in   collusion   with the   Land   Adjudication    officer cancelled   his   name from L.R.   No.   3448 and replaced it with   the 1st Defendant’s     name and has   annexed   the altered registration gathering book. He states that he learnt   of the cancellation when he   went   to present his booklet to the lands   office.   That   he   was   then issued with   another   booklet    allocating to him   Parcel No.   4093.  That   the   newly   allocated parcel   was   2. 79 Acres   less   than   his original   parcel of land. He   was   later    in 2004   issued   with   a title   to   parcel No.  4093 in    his    name      as NGUNGA M’KAIBI    whilst the 1st Defendant was issued   with   a title to parcel   No.3448.  That the 1st Defendant then` in the   year   2005   subdivided parcel No.3448   into   three   parcels being   numbers 4351, 4352 and   4353.  The 1st Defendant then   proceeded   to   sell   parcel’s No.4351   and 4352 to third   parties   namely James Kariuki Murungi   and   Francis Nteere respectively while   parcel No.4353 remained with the 1st Defendant.   The Plaintiff   claims that   while   all   that   was happening, he   continued to remain in occupation   and use of parcel No.4353    and has   remained thereon to date. He claims that   a combination of the acreage for parcel No.4093 and   4353 (which measures 1. 70 Acres) sums    up   to   4. 09   Acres   which   was   his original share and which he claims to have been in occupation all along.   He   contends that the 1st Defendant has never been in occupation of parcel No.4353. That he has tried to engage the Land’s office to correct their records accordingly in   vain precipitating this suit and prays   for orders to issue as prayed.

5.  The 1st Defendant passed on   19/12/2015 and   was   substituted   by Jacob Miriti Kaaria after obtaining grant ad Litem issued on 9/8/2016 vide a ruling delivered on 23/11/2016.

6.   Through a Notice of motion dated 23/5/2016 one   Daniel   Muthamia   Kaaria who was not a party to this suit sought to enjoin Peter Kobia to the suit   as   an interested   party in   respect to parcel No.NYAMBENE/KIRINDINE/3594.  That application   was   allowed   vide   an order dated 23/10/2017.

7.  The   1st Defendant   filed   its   grounds of opposition dated   28/8/2013 claiming that the suit was res judicata and that the Plaintiff is an illegal trespasser on the suit land.

8.  The substituted   1st Defendant filed   a    Witness Statement dated 4/7/2017   in which he admits that indeed land   parcel number   3448 was originally   gathered and occupied by the Plaintiff, that his late father secretly subdivided the Plaintiff’s land into   4 portions being 4351- 4353 and 4093. He claims that   his father sold 4351 and 4352 to   third    parties who   never took possession of these parcels of land. That   4353   remained in his late father’s name   and   4093 was   registered in the name of the   Plaintiff.  He concedes that   the said acts of subdivision and selling by   his late father   were illegal and   carried out secretively. He claims     that there have   been   efforts to   revert the parcels   of land to their rightful owner.    The Plaintiff   urged the Court to   grant the   land to the Plaintiff to   avert   family   curses    and he   claims   that   his   family   has   its own land that belonged to their late   father.  He confirms   that the Plaintiff   is in possession of the suit land and   has   substantively   developed it.

9. The interested parties filed several documents in compliance with   order   11.  The   matter proceeded    viva   voce.   PW1   the Plaintiff   adopted   his   witness statement.  He confirmed the portion of land   he occupies   is 4. 09 acres.  That   demarcation was done   in 1996.  He produced the following   documents; copy of cancelled   registration    gathering   booklet for parcel No.3448, copy of   booklet   for parcel No. 4093 in    name of   plaintiff, copy of   green   card for parcel No.4093.

10. PW2   testified that the Plaintiff   was well known to him. They are neighbours and that the Plaintiff has lived on the suit land since 1948.

11. DW1   - the   1st Defendant adopted his statement and confirmed that the Plaintiff lived on the suit land since birth. He   adopted his statement and produced his late father’s   death   certificate, copy of grant ad litem issued on 9/8/2016 and a letter from the chief.  That his father   had other parcels of land that he left for his family.

12. DW2 - the 2nd Defendant did testified and called several witnesses being DW3   - Mr.   Mamu    who is the brother to the 1st and   2nd   Defendants who testified that parcel No.4353    is occupied by   the   2nd   Defendant   and not the Plaintiff.   DW4   - Jane Kamau   the wife of     the deceased and mother to 1st and 2nd Defendant testified that the suit land was sold but she lives there and that the Plaintiff lives elsewhere.  That the interested party   was not known   to her.  DW5   John Kirathe the brother to 1st   and 2nd   Defendant   denied   that the Plaintiff lives on the suit land. The interested party testified that   his claim   is in respect   to parcel No.3594 and that he had no claim against the Plaintiff.

13. In submissions the Plaintiff reiterates his averments in the summons and oral evidence. He believes that he has   demonstrated that his claim for adverse possession is   merited since he   adduced evidence to show he is in actual, continued and notorious  occupation   of the suit land since   1948. That his evidence   was collaborated by the evidence of   PW2 and DW1.  He dismisses the evidence adduced by the 2nd Defendants’ witnesses for inconsistences on who   exactly was in occupation of the suit land.  He    challenges the   will produced   by the 2nd   Defendant for having   alterations that   are Not countersigned.

14. The 1st Defendant reiterates in his   statement    on   his submissions which   are in   support of the plaintiff’s claim and prays for time Plaintiff’s   claim to   be allowed.

15. The   interested party submitted to the effect that he is   wrongfully   enjoined to the instant   suit   as he has no claim against the Plaintiff.

16. There are no submissions by the 2nd Defendant on record at the   date of the writing   this judgement.

Analysis and determination

17. The issues for determination are; whether the joinder of the IP was merited; whether the Originating Summons are incompetent before the Court for failure to annex certified copy of the title; whether the Plaintiff has established title by way of adverse possession; who meets the costs of the suit.

18. Upon perusing and analysing the evidence presented by the interested party it is clear that the joinder of the Interested party was not necessary in the case. I say so because the interested party in his witness statement has admitted that he has no dispute with the Plaintiff. He was enjoined by a party who for all purposes and intents was and remains a stranger to the suit. His case relates to parcel No NYAMBENE/KIRINDINE/3594 which he claims to have purchased from M’Mwendwa Geoffrey in 1987. The original parcel of the land was 2680. In his evidence he stated that he has no dispute with the Plaintiff who is his neighbour. His dispute is with the 2nd Defendant whom he claims to have many cases pending at Maua Law courts. The land which is subject of this case is NYAMBENE/KIRINDINE/3594. I have perused the plan attached to the Interested party’s Replying affidavit dated the 9/2/2017 and it is evident that the parcel No 3594 is different from parcel 3448 from which 4353 is derived from. The Court finds that the 2nd Defendant has No cause of action or primafaciecase against the interested party as concerns this matter. Indeed the Plaintiff has No claim against the interested party.

19. In view of the finding in Para 17 above and in the interest of justice the orders issued on the 16/10/17 inhibiting parcel No NYAMBENE/KIRINDINE/3594 are hereby vacated forthwith.

20. The initial parties to this suit were the Plaintiff and one Samwel Kaaria M’Mkaibi. Upon his death his son Jacob Miriti Kaaria was substituted with the leave of the Court on the 23/11/2016. It is not clear from the record how the 2nd Defendant became enjoined as a party to the case. He is not a party to the suit he did not   show evidence of legal representation of the estate of the deceased. There is no   application for substitution   by   the   2nd Defendant on record. I have looked at the Court proceedings as well and there is no indication of how the 2nd Defendant was enjoined as a party to the suit. The Court declares that the 2nd Defendant is improperly in the suit having sauntered in without any enjoinment neither by the existing parties nor with leave of the court. Going by the documents and the evidence of the 2nd Defendant he has staked a position of a Defendant against the Plaintiffs claim. He is therefore removed from the record and all the proceedings in respect to him are expunged from the record.

21. It is Noteworthy that the 2nd Defendant did not file any response to the Plaintiff’s case. He has however filed witness statements and list of documents. The question one would ask is what is his defence to the plaintiffs claim? In his evidence in Court he testified and stated that the Plaintiff is his neighbour but denied that he occupies parcel No 4353 but parcel 4093 which is the plaintiffs land. He maintained that the land parcel 4353 has been sold to one Stephen Mutai. He produced a will which he claimed to be authored by his father. Para 3 of the said will makes reference to parcel No 4153 which is said to have been sold to one Gitobu Imanyara. However, there is an attempt to erase parcel No 4153 and superimpose 4353. This piece of evidence is inconsistent with the evidence of the 2nd Defendant that the land was sold to one Stephen Mutai. The Court finds and holds that in view of the alteration the credibility of the document is called into question.

22. DW3, DW4 and DW5 all gave evidence in line with the DW2 which is that the Plaintiff does Not occupy the suit land. They were all sketchy and since they claim to be the plaintiff’s neighbours, it would appear that their evidence was skewed to lie. The Court finds and holds that their evidence when put on a scale cannot be believed. Their main focus is that the land has been sold to a third party.

23. I have perused the pleadings of the Plaintiff including his list of documents and I did Not find a certified copy of the title in respect to the suit land. He has attached the extract of the green card for parcel No 4093 which is registered in his own name. He cannot claim adverse possession against his own title. In his pleadings and evidence he states that his claim is in respect to the original parcel No 3448 which was registered in the name of Samwel Kaaria and which land was subdivided into parcel Nos. 4351 4352 and 4353. His claim is specifically on parcel No 4353 which he claims to be registered in the name of Samwel Kaaria. By the time of hearing the case the Plaintiff did not present the said copy of the title so that his suit is compliant with Order 37 rule 7 of the Civil Procedure Rules.

24. Section 38 of the Limitation of Actions Act provides that;

“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.”

25. The Plaintiff in filing the Originating Summons in this case to assert his rights of title under adverse position had not complied with the above provision. However, Order 37 Rule 7 of the Civil Procedure Rulesas follows:

“An application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons.

The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed”.

26. The wording of the above provisions is mandatory. The orders which will finally be made in the case should not be in vain.  The Plaintiff must present a prima facie prove that the 1st Defendant is the registered proprietor of the suit land by annexing a certified copy of the title or an extract of the green card. Adversity of a title must be established as against a known owner and not in a vacuum. More so in the face of evidence from DW3-DW5 that the suit land has been sold to a third party. If it is found to be true then the Court will have issued orders against persons that are not parties to the suit. That will offend the right to be heard as enshrined in Article 50 of the Constitution of Kenya.

27. In Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] eKLRthe Court of Appeal stated as follows:

“That the identification of the land in possession of an adverse possessor is an important and integral part of the process of proving adverse possession. Indeed, rule 3 D (2) of order XXXVI Civil Procedure Rules requires that a certified extract of the title to the land in question should be annexed to the affidavit supporting the originating summons. In this case, the appellant did not annex the certified extracts of land title LR Nos 1756 and 1757 before the sub-division or even after the sub-division. ...... The burden was on the appellant to produce the certified extracts of title in respect of the suit properties.”

28. Similarly, in the case of Moses Chepkonga Cherono v Margaret Njoki Kinyanjui [2017] eKLR D.O Ohungo.J also held that failure to annex a certified extract of the title to the land is fatal to the Plaintiff's claim.

29. The Plaintiff has failed to comply with the provisions of 0rder 37 of the Civil Procedure Rules. In view of this the Court does not find it prudent to determine the key issue whether or Not the Plaintiff has established title by way of adverse possession. It will serve No purpose as there will be difficulty in effecting any orders if the matter is determined in favour of the plaintiff. The true owner of the land, if different from the current parties, will have been condemned unheard.

30. Final orders;

a. The Court finds and holds that the suit is incompetent. It is dismissed with costs.

b. The 2nd Defendant and the Interested party are expunged from suit together with all the proceedings in their respect.

c. The orders issued on the 16/10/17 inhibiting parcel No NYAMBENE/KIRINDINE/3594 be and are hereby vacated forthwith.

d. The Plaintiff shall pay the 1st Defendant’s costs. The 2nd Defendant shall pay the costs of the Interested Party.

Orders accordingly

DELIVERED, DATED AND SIGNED AT MERU THIS 8TH DAY OF APRIL, 2019.

J G KEMEI

JUDGE

In the presence of;

C/A Mutwiri

M.G Mbijiwe holding brief for Mbaabu for Plaintiff

1st Defendant present

Murango holding brief for Kimathi for 2nd Defendant

Kiogora Arithi holding brief for interested party

Interested party