Duncan Mukabi Kangethe & Frashiah Wangui Muiruri v Joseph Ndungu Mwaura [2021] KEELC 3558 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC NO.134 OF 2018(OS)

(FORMERLY NRB  ELC 87 OF 2014(OS)

DUNCAN MUKABI KANGETHE…………………………………1ST PLAINTIFF

FRASHIAH WANGUI MUIRURI………………..……….……….2ND PLAINTIFF

VERSUS

JOSEPH NDUNGU MWAURA……………………………..……….DEFENDANT

JUDGMENT

Vide an Originating Summon dated10th December 2013,the Plaintiffs herein brought this suit against the Defendant seeking determination of the following questions;

1. Have the Plaintiffs acquired the titles to the said parcel of land known as Title No. Lari/Township/56, by reason of Adverse Possession thereof since the year 1993?

2. Was the Defendant’s title to the said parcel of land known as TITLE NO. LARI/TOWNSHIP/56, extinguished upon expiration of a period of 12 years, since the plaintiffs and their predecessors took possession thereof in the year 1993?

3. Does the Defendant hold title of the said parcel of land in trust thereof for the Plaintiffs?

4. Are the Plaintiffs entitled to an order of this honorable Court that they be registered as proprietors’ of the said parcel of land known as Title No.Lari/Township/56, in place of the Defendant whose title was extinguished?

5. Who as between the Defendant and a person authorized by this Honorable Court, should execute the transfer and in what form, if any is necessary, of the said parcel of land known as Title No. LARI/TOWNSHIP/56, to effectuate the registration of the Plaintiffs as the proprietors’ thereof.

6. Who shall bear the costs of this originating summons?

In his Supporting Affidavit,Duncan Mukabi Kangethe, the 1st Plaintiff averred that he had the authority of the  2nd Plaintiff  to swear the Affidavit. That the suit property is registered in the name ofJoseph Ndungu Mwaura,the Defendant herein. That on26th January 2005, he took physical possession of the suit property after the same was sold to him by onePeter WaweruforKshs.160,000/=which he paid in full. ThatPeter Waweruwas allotted the said property by the Kiambu County Council in the year1993.

That  upon purchase of the suit property,  they paid all requisite dues  owing to the Local Authority  and dues necessary to effect an informal transfer  which as approved by theCounty Council of Kiambu.That they have been in continuous, open, exclusive undisturbed and uninterrupted occupation, use and enjoyment of the said premises personally and through   their predecessor since the year1993,being a period of over12 yearsas required by law. That he has been advised by his Advocates  which advice he believes to be true that he is entitled to the Order of the Court  to be registered as the proprietors of the suit property  as the Defendant’s title to the suit property was extinguished upon expiry of12 years,since his predecessor was in physical occupation and the Plaintiffs took possession thereof in the year1993.

In opposing the Originating Summon, the Defendant  filed a Replying Affidavit and Counter Claim dated16th April 2019,through the Law Firm

ofMwaura Shairi & Co Advocates,and averred that he became the registered  owner of the suit property on7th June 2012.  That he  has been advised by his Advocates,  which advice he believes to be sound, that the allegedAdverse Possessionof the suit property  as concerns him commenced on7th June 2012,which is below 12 years statutory period.

Further that his predecessor inTitle No.Lari/Township/56,was registered on the2nd June 2010,as it appears in the abstract of title. Further that time did not  run against  the thenCounty Council of Kiambuin favour of the Plaintiffs and his title is unchallengeable  under Section26(1)  of the Land Registration Act 2012.

In his counterclaim, the Defendant contends   that the Plaintiffs have no claim or interest in the suit property  and are trespassers.  He  claimedmesne profitsfrom the Plaintiffs ofKshs.10,000/=per year from7th June 2012,to date.

By Consent of the parties, the Originating Summons was  canvassed by way of written submissions.

Plaintiffs filed their written submissions on7th August 2020,through the Law Firm ofE. M Wachira & Co. Advocates andrelied on various provisions of Law amongst themSections 7, 13,17 and 38  of the Limitations of Actions Act.  It was submitted that upon expiry of12 years,since the Plaintiffs took possession and dispossed the Defendant of his possession, of the suit property, the registered proprietors title  to the suit property  was extinguished by Adverse Possession.

The Plaintiffs relied on the case ofMakuyu Club…Vs… Kakuzi (2019)  citing the case of  Mbira ….Vs… Gachuhi (2002) 1EALR 137 where the Court held that;

“a person who seeks to acquire  title to land  by the method of Adverse  possession for  the applicable  statutory period , must prove non permissive or nonconsensual actual,  open, notorious, exclusive and adverse use  by him  or those under  whom he claims  for the statutorily prescribed  period without interruption.”

It was further submitted that though the Defendant is  the registered proprietor of the suit property,  he has  never been in possession . That the Defendant and his predecessor  in title were thus  dispossessed of the suit property. That the circumstances under which the Plaintiffs and their predecessor took possession could not be controverted. That the allocation of the Plaintiff’s predecessor was in the year1993, while the Defendant’s predecessor is alleged to have obtained the title in2010,being 17 years later. It was further submitted that by adopting the principle  of tacking, time does not start to run  when the Plaintiffs  physically took possession,  but from  the time when  their predecessor in interest took possession.

It was further submitted that  the Plaintiffs have met all the tenets for declaration of  prescriptive  rights and are thus entitled to be registered as owners of the suit property by  virtue  of Adverse Possession.

The  Defendant filed his submissions on12th February 2020,through the Law Firm ofMwaura Shairi &Co. Advocatesand submitted that the Plaintiffs claim must fail  because even if the  Plaintiffs took possession  in2005before the period up to14th June 2010, the suit property  was government land and  the Plaintiffs could not claimAdverse Possessionagainst the government. That time did not run  against public bodies.

He relied onSection 43  of the Limitations of Actions Act. That the Plaintiffs had been in possession for one year since the Defendant became the registered owner and that time did not run after the suit was filed.  It was further submitted that  the allotment letter, sale agreement and approval of transfer  are not documents in law that confer  ownership. That the Defendant has a Certificate of Lease which are documents that confer  ownership The Defendant relied onHCCC No. 283 of 1990 Gabriel  Mbui….Vs… Mukinda  Maranya and urged the Court to dismiss  the suit with costs.

The Court has now  carefully read and considered the  Originating Summons, the Affidavits in support and against and the rival written submissions, and finds that the issues for determination are;-

1. Whether  Time  for purposes of Adverse possession runs  as against Public  land

2. Whether the Plaintiffs are entitled to the orders sought

3. Whether the Defendant is entitled to the orders sought

4. Who should Bear the Costs of this proceedings

1. Whether  Time  for purposes of Adverse possession runs  as against Public land

Section 41 of theLimitation of Actions Act, excludes Public Land from the application of the Act.  Section 41(a) of the Act provides:-

41. Exclusion of public land

This Act does not -

(a)  enable a person to acquire any title to, or any easement over -

i.   Government land or land otherwise enjoyed by the Government;

ii.  Mines or minerals as defined in the Mining Act (Cap. 306);

iii. Mineral oil as defined in the Mineral Oil Act (Cap. 307);

iv.  Water vested in the Government by the Water Act (Cap. 372);

v.  Land vested in the County Council (other than land vested in it by Section 120(8) of the Registered Land Act (Cap. 300)); or

vi.  Land vested in the Trustees of the National Parks of Kenya; or

Further in the case of  Ann Itumbi Kiseli …Vs… James Muriuki Muriithi [2013] eKLRthe Court held that:

1. “The definition of what Government land is for the purpose of computing time in a claim for adverse possession should be considered in the light of the Constitution, 2010.

53. Just like state corporations established under specific Acts of Parliament, the Settlement Fund Trustee is in essence a public enterprise.

54. The classification of land held by State organs, like the Settlement Fund Trustees, as public land is reinstated in Article 62(i) (b) of the Constitution which provides as follows:

“Public land is land lawfully held, used or occupied by any Stateorgan…”

Therefore, the Court finds and holds that as a person cannot claim Adverse Possession as against land that is public owned i.e owned by any state organ.  It therefore follows that time cannot run as against  title held by the government  and therefore as against public land .

2. Whether the Plaintiffs are entitled to the orders sought

The Plaintiffs have sought  the determination of whether  they are entitled to the suit property by way ofAdverse Possessionand  or whether the Defendant’s title over the suit property ought to be extinguished.

Section 38 (1) and(2) of Limitation of the Actions Act  provides;-

(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited inSection 37of 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.

(2) An order made under subsection (1) of this Section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

In determining whether or not to declare that a party has acquired land by Adverse Possession,there are certain principles which must be met as quoted by Hon. Justice Sergon in the case of Gerald Muriithi …Vs…Wamugunda Muriuki & Another (2010) Eklr, while referring to the case of Wambugu …Vs…Njuguna (1983) KLR page 172 the where the

Court of Appeal held as follows;

‘’1. In order to acquire by statute of limitations title to land which has a known owner the owner must have lost his right to the land either by being dispossessed of it or by having continued his possession of it. Dispossession of the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed of the suit land for a continuous period of twelve years as to entitle him, the respondent to title to the land by adverse possession.

2. The limitation of Actions Act, on adverse possession contemplates two concepts: dispossession and discontinuance of possession. The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not the claimant has proved that he has been in possession for the requisite number of years.”

From the above quotation, it is not in doubt that for the Plaintiffs to be able to succeed on a claim of adverse possession, they must be able to prove dispossession, discontinuance of possession for a continuous period of 12 years and further that the dispossession occurred and the Defendant had knowledge of such dispossession.

It is not in doubt that the Plaintiffs are in possession of the suit property. The Plaintiffs aver that  vide a Sale agreement  dated 26th January 2005,they bought the suit property from one Peter Waweru,  who had been allocated  the suit property in 1993, and has been in possession of the suit property ever since. The Plaintiffs have further sought to rely on  the principle of tacking  which provides that time does not start to run  when  the Plaintiffs  physically took possession  but from the time when their predecessor  in interest took over possession . The Plaintiffs have thus relied on the case of Gabriel  Mbui …Vs... Mukindia  Maranya(1993)eKLRwhere it was held;-

“one interesting  question within  the subject  of continuity is tacking  that is  to stay, the adding together  of periods of possession  that are continuous  but by different  persons…..”

It is thus not in doubt that  from the evidence produced  by the Plaintiffs that the said Peter Waweru was allocated the suit property in 1993, contents which have not been controverted by the Defendant and if the Court was to  follow the principle of tacking, possession  by the  Plaintiffs and their predecessor would most definitely be  more than 12 years from the year 1993.

However, in this instant case, the Plaintiffs having claimed Adverse Possession  against the Defendant, they must thus  prove that they have  been in possession of the suit property for a period of over 12 years as against the Defendant’s rights.  It is the Defendant’s contention that by the time the Plaintiffs filed the instant suit, they had only been registered as proprietors  for a period of over one year and therefore Adverse  Possessioncannot stand as against them.

In the case of Paul Kamande Gicheha …Vs… Jacob Kinyua Kiragu [2018] eKLRthe Court held that;

“It is trite that the mere change of ownership of land which is occupied by another person under adverse possession does not stop time from running or interrupt such person’s adverse possession. See Githu v Ndeete [1984] KLR 776. ”

Therefore, the mere  changing of the title fromRose Waithira Makimeito the Defendant did not stop time from running and  time computation would be  computed from the time  the saidRose Waithirawas registered as the owner.

The Court has seen thegreen cardproduced in evidence by the Defendant  that indicate that the saidRose Waithira Makimeiwas registered as the owner  on2nd June 2010,and was issued with a Certificate of title  on15th June 2010.  As per the Green Card, it is therefore not in doubt that  before the saidRose Waithira Makimeiwas registered as the owner, the suit property belonged to the Government of Kenya and was therefore public land.

As already held by the Court above, time does not run when the suit is public land.   In the instant matter, time began  to run  on15th June 2010,whenRose Waithirawas registered as the owner for purpose  of claim forAdverse Possessionby the Plaintiffs.

The Instant suit was  filed on30th January 2014,there is therefore no doubt that12 yearshad not passed from the time of registration  in which the registered owner would have been dispossessed  or discontinued of the possession of the suit property . See the  case ofMbarak Said Ali & another …Vs… Sultan Palace Development Limited [2020] eKLRwhere the Court held that ;

“the key test for a claim of adverse possession would be whether the registered owner of the land was dispossessed or has on his own discontinued possession for the period of 12 years.”

Further in the Case of Ravji Karsan Sanghani v Peter Gakunu [2019] eKLRthe Court held that ;

“In my view, adverse possession can only run against the title of a registered proprietor and in the instant case the Defendant was first registered as proprietor of the suit land on 16th January 1990.  Time could only run from that date.”

Therefore, this Court finds and holds that as12 yearshad not lapsed since the   time running through which the Plaintiffs would have sought  to have  dispossessed  the Defendant.  There can be no  claim of Adverse Possession that can be laid, as the law requires  that for a person to claimAdverse Possessionhe / she must have  been in possession for a period of over12 years.In this instant it has only been over3 years.The Court therefore finds and holds that the Plaintiffs are not entitled to the orders sought.

From the documentations provided in evidence and the written submissions, it is the Court’s considered view that this claim would have best been articulated vide a Plaint wherein the Court would have answered the question who between the parties herein had been able to trace the root of their title as opposed to a claim for Adverse Possession.

3. Whether the Defendant is  entitled to the orders sought

The Defendant has sought for  mesne profits and for  the Court to Order the  Plaintiffs  to vacate the suit property.

Section 2 of the Civil Procedure Act Cap 21 of the Laws of Kenya defines mesne profits as follows:-

“mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;

The Defendant has not led any evidence  that will make the Court definitively hold that  the Plaintiffs are in wrongful possession of the suit property.

While the Court has  held that the  Plaintiffs  cannot claimAdverse Possession,the Court has not made a finding on ownership of the suit property and therefore it cannot hold that the Plaintiffs are in wrongful possession and thereby grant mesne  profits. This is  further reinforced by the submissions by the Defendant/Respondent who submitted  that  the facts not in dispute are that  the suit property was allocated to onePeter  Waweruon5th August 1993,who is the party  that sold the suit property to the Plaintiffs and  further that on2nd June 2010, Rose Waithira Makimeiwho sold the suit property to him  was  registered as a Lessee . In essence the Defendant is acknowledging that there is need to probe the   root of  both parties’ titles which was an issue that was not before this Court.

Consequently, the Court finds and holds that at this juncture, the Defendant is not entitled  to the orders sought in his counter claim  as the issue of  ownership of the suit property as between the parties herein was not an issue before this Court and the court having made no finding on the same, then it cannot grant the Orders sought.

4. Who should bear the Costs of this proceedings

Section 27 of the Civil Procedure Act  gives the Court discretion to grant Costs. However, it is trite that costs usually follow the events. In this instance the Claim by the Plaintiffs has failed and the Defendant’s claim has also failed. Therefore, the Court finds and holds that it is prudent that each party should bear his/their own costs.

Having carefully read and considered the Pleadings by the parties,   and the written rival submissions filed herein, the Court finds and holds that the  Plaintiffs have not proved their case on the required standard of balance of probabilities and thus finds the Originating Summons dated 10th December 2013, is not merited and the same is dismissed entirely.

The Defendant has also  not proved  his claim in the Counter Claim dated 16th April 2019, on the required standard of  balance of probabilities and again the Court finds that  his Counter Claim is not merited and the same is dismissed entirely. Each party to bear his/their owns costs of the proceedings.

It is so ordered.

Dated, signed andDelivered atThikathis29thday ofApril 2021.

L. GACHERU

JUDGE

29/4/2021

Court Assistant – Phyllis

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Wachira for the 1st and 2nd Plaintiffs

M/s Mwaura for the  Defendant

L. GACHERU

JUDGE

29/4/2021