Christopher Musyoka Musau v Jonathan Kituu Kiia [2018] KEELC 3769 (KLR)

REPUBLIC OF KENYA

IN THE   ENVIRONMENT  AND  LAND COURT  AT MAKUENI

ELC 252OF 2017(O.S)

CHRISTOPHER  MUSYOKA MUSAU..........................-PLAINTIFF

VERSUS

JONATHAN KITUU KIIA............................................DEFENDANT

JUDGMENT

1.  Christopher Musyoka  Musau  who is the plaintiff herein is  businessman  in the hotel industry. In 1985  he  purchased land parcel number Kiteta/Kiambwa/362 from  the defendant.  Owing to the defendant’s persistent failure to appear before the appropriate  Land  Control Board,  the suit  property, Kiteta/Kiambwa/362 is yet to be transferred from the defendant to the plaintiff.

2.  By his  Originating Summons dated 3rd May, 2012 and filed in court on even date, the plaintiff prays for orders:-

1)  THAT  the  plaintiff/applicant be found to be entitled to all that piece of land measuring  0. 5 hectares comprised in the title No. Kiteta/Kiambwa/362 by virtue of adverse possession against the defendant/Respondent.

2) THAT  costs of this originating  summons be provided for.

3. The Originating Summons is supported by the affidavit  of Christopher  Musyoka Musau, the  plaintiff herein, sworn on the 3rd  May, 2012 and filed  in court on the same day together  with the Originating Summons.

4.  This  matter  suit proceeded as undefended suit after the defendant failed to file his reply to the Originating Summons despite being served with summons on the 3rd November, 2016  and on 8th September, 2017 respectively.

5.  On the 16th November,2017 the court directed  that the Originating Summons  be disposed off by way of viva  voce evidence. Consequently, the matter was fixed for  hearing on the 23rd  January, 2018 when the plaintiff appeared  in court to testify.

6. The plaintiff’s  evidence  in chief was that he bought  land parcel number  Kiteta/Kiambwa/362 from the defendant in 1985.  He added that the defendant  signed the forms for consent  which  the plaintiff  presented before the appropriate   Land Control Board.  The  plaintiff pointed  out that the Land  Control Board declined to give consent for the transfer of  the the land in question  on the grounds that the defendant  was required to appear in person.  The plaintiff further testified that before the expiry of the 6 months prescribed for obtaining consent from  the appropriate Land Control Board, he asked the defendant to appear before the  board. He said that the defendant instead  wrote a letter to the board indicating  that he had  sold  his land to the plaintiff.  It was the plaintiff’s evidence that the defendant gave him the original title deed for land  parcel number Kiteta/Kiambwa/362 (PEX no. 1).  He said that the defendant  was yet to transfer the land in question to him.  Further the plaintiff produced certificate  of search  dated 30th March, 2012 as PEX no. 2  to show  that land parcel number Kiteta/Kiambwa/362 is still registered in the defendant’s name.  The plaintiff also produced consent forms and the letter dated 28th August, 1985 that the defendant wrote to him as Pex nos. 3 and 4 respectively.

7. The plaintiff  added he is in active  possession and use of the land in question.  He  revealed that he has been in quiet possession of the land for over 30 years since 1985 and asked the court to  hold that he is in adverse possession of it.  The plaintiff  declined  an order for costs.

8. Mr. Mutuku advocate for the plaintiff filed written submissions  whereby he summed up what the law on adverse possession presupposes anybody claiming  land must prove namely:-

1) That the  claimant must is in the land without lawful reason,

2) The stay is over 12 years.

3) That the stay is peaceful and continuous.

9. The counsel submitted that even though the plaintiff  entered into the land by virtue of sale agreement, the land  control board consent was not obtained and hence the transaction  became void  abinitio. The counsel relies on the Land Control Act Chapter 302. The counsel added that the plaintiff had no  reason  to be  on the land and his continued stay was unlawful but  nevertheless he was on the land for over 26  years before filing  this suit. The counsel  also  relies on the cases of public  Trustee vs Wanduru[1984] eKLR, Simon Pkite Chameltor Vs William  Loishakou [2016] eKLR and Peter Mbiri Michuki Vs Samuel Mugo Michuki[2014] eKLR.

10. I have read the  three authorities that touch upon the law of adverse possession and I wish to state that the law of adverse possession is now settled.  The Limitation  of Actions Act Chapter 22 of the Laws of Kenya prescribes 12 years as the period for one  to acquire legal title by way of adverse possessions.

11. Black’s Law Dictionary, 9th  Edition  at page 62 defines adverse possession as ,

“ the enjoyment of real property with a claim of right when that enjoyment is opposed to another persons claim and is continuous, hostile open and notorious.”

12. In the case of Francis Gitonga Macharia Vs Muiruri Waithaka in Civil Appeal no 110 of  1997, the Court of Appeal stated that  limitation period for  purposes  of adverse possession only starts  running after the registration  of the land in the name of the respondent.

13. In the case before me there is evidence  to show that  the plaintiff has been  in a possession of land parcel number  Kiteta/Kiambwa/362 for over 30 years.  The same  evidence shows that he has been farming  on it without  anybody disturbing  him.  The plaintiff  could not have the land in question registered in his name after the defendant failed to appear before the appropriate land control board on a date that the plaintiff did not disclose. Section 6(1) (a) of the  Land Control Act Chapter 302 of the laws of  Kenya provides as follows;

“sale, transfer… or other disposal of or dealing with any agricultural land which is situated within a land control area is void for all purposes unless the Land Control Board for the land control area or division in which  the land is situated has given  its consent in respect of the transaction in accordance with the  Act.”

14. It would appear that though the application to transfer the suit land   to the plaintiff was made before the expiry of 6 months as is required under section 8(1)  of the Land Control Act going  by what the plaintiff told the court, no consent  was given  for non-appearance of the defendant before the board.  It is therefore clear that the transaction between the plaintiff and the  defendant  became void  at the expiry of 6 months  from the date when the two  entered into the said transaction. However, I do note that the plaintiff has  been in continuous   occupation of the defendant’s  land parcel number Kiteta/Kiambwa/362 for over 30 years.  The same has been open and notorious judging  from the farming activities that the plaintiff has undertaken on the said farm. The plaintiff has met the threshold set out in  the Limitation of Actions Act Chapter 22 of the laws of Kenya for him to acquire legal title

15. over the defendant’s land parcel Kiteta/Kiambwa/362 by way of adverse  possession.  In the circumstances.  I hereby proceed to enter  judgement for the plaintiff and against the defendant in terms of prayer 1  of the Originating Summons. Should the defendant  decline to transfer the transfer forms for the said land parcel number Kiteta/Kiambwa/362, the Deputy Registrar  of this court is authorized to sign the same .

Signed, dated  and  delivered  at Makueni  on this  20th day of March, 2018.

Mbogo C.G

Judge

In  the presence of ;

1. Mr. Mutua  Makau holding brief for Mr. P.M Mutuku for the plaintiff.

2.  Mr. Kwemboi   Court Assistant.

MBOGO C.G, JUDGE

20/3/2018