Fumo v Mohamed (Civil Appeal No. 21 of 1941) [1942] EACA 53 (1 January 1942)

### APPELLATE CIVIL

#### BEFORE THACKER, J.

MOHAMED BIN ALI FUMO as Wasi of the Estate of BEREKI BIN ALI FUMO, Appellant (Original Defendant)

# AZIZ BIN MOHAMED, Respondent (Original Plaintiff)

# Civil Appeal No. 21 of 1941

## Land Titles Ordinance Cap. 143—Sections 6, 17 and 18—Jurisdiction—Unregistered land-No claim made-Land Registration Court only competent Court. to adjudicate—Rights of Crown.

The facts sufficiently appear from the judgment.

Held (21-10-42).-(1) That by sections 6 and 18 of the Land Titles Court Ordinance, Cap. 143. of the Revised Edition of the Laws of Kenya, the Land Registration Court is the only competent Court to adjudicate upon claim to unregistered immoveable property to which the Ordinance has been applied, and no other Court has jurisdiction to adjudicate upon such a claim.

(2) That by section 17 of the same Ordinance the Crown is deemed to be the owner of all land to which in accordance with section 15 of the same Ordinance no claim has been made or no certificate of ownership granted within the stipulated period.

(3) That the fact that the one of the parties to the suit has lodged a claim with the Recorder of Titles upon which no decision has yet been made does not per se confer jurisdiction upon any Court other than the Land Registration Court.

Appeal allowed with costs.

C. H. Patel for appellant.

Inamdar for respondent.

JUDGMENT.-In the Court below the plaintiff-respondent claimed as against the defendant-appellant the ownership of certain land Plot No. 905 in the Malindi District on the ground that he had inherited it from his father, and that he obtained it 42 years ago and that it is in his possession now. The defendant appears to have admitted that the plaintiff built houses on the land in 1912. It: is common ground that the defendant sold the land by auction before the action was brought to one who is not a party to this action. The defendant further<br>says the land never was the property of the plaintiff but of one Brek bin Ali Fumo, who inherited it from his father 60 years ago. The defendant says he sold the land as Wasi of Brek bin Ali Fumo. The buyer' attempted to register the purchase with the Recorder of Titles' at Mombasa and this transaction appears. to be noted on the Recorder's register.

The plaintiff succeeded before the Liwali merely on the ground, it appears, that the plaintiff had built a house on the land 28 years ago. The Liwali ignored the provisions applied to the Malindi district as from 15th January 1909 of the Land Titles Ordinance Cap. 143. The appellant's appeal is grounded on twomain grounds: -

(1) The land is deemed to be Crown land by Section 17 of the above Ordinance, because the plaintiff lodged no claim in respect of the land as he was required to do by Section 15 of the Ordinance. It is admitted. that the plaintiff did not lodge any claim.

### (2) The plaintiff had no cause of action against the defendant because the defendant had at the time of filing the suit no interest in the land. having sold it.

It is quite clear that in face of the provisions of Section 17 of the Ordinance, the Crown is deemed to be the owner of the land, subject possibly to any claim to it which was in the defendant, or may now be in the purchaser from the defendant. It is manifestly clear that the plaintiff cannot contend that he is the owner of the land because he has made no claim to it, as he was required to do by Section 15 and that the Crown is now deemed to be the owner as against himself.

But, in argument before me, the plaintiff through his advocate seems to change his ground somewhat and now seeks a declaration that the defendant's right and title are extinguished by virtue of the plaintiff's adverse possession for 28 years. There are two objections to this, as it seems to me. (1) Before the lower Court the plaintiff's claim was not based on adverse possession. It was based on ownership by reason of inheritance. (2) The defendant had no interest in the land when the action was brought and I can see no justification for making any declaration of title in favour of the plaintiff as against a person who claims no interest in the land at the time of action brought.

The plaintiff's advocate admits that he requires this declaration of title, namely that the defendant's title has been extinguished owing to adverse possession in order that he may go to the Government or the Recorder of Titles with it. No doubt, such a decree from this Court would be of some value to the plaintiff as against the purchaser from the defendant, but I am not minded to make such an order. I might in the result be putting a person who has made no attempt to carry out the provisions of the Land Titles Ordinance in a better position than one (the defendant) who has at least made some attempt to comply with the Ordinance. The whole basis of the action has changed since it was brought in the lower Court. The plaintiff either claims to be the owner of the land or he does not. I gather he does not now so claim, though he clearly did in the lower Court. He is not the owner, because the Crown, so far as the plaintiff is concerned, is the owner. His possession for 28 years cannot run against the Crown, and therefore the Crown is the owner. Has the plaintiff therefore any right or interest in the land? I cannot see that he has and by Section 37 of the Ordinance any right, title or interest he may have had, and I am not laying it down that he ever had any, has been absolutely extinguished and barred. This alone would seem to bar very effectively any right of action against the defendant, apart altogether from the fact that the defendant had no interest in the land at the time the action was brought against him. I cannot see that the Liwali had any jurisdiction to try the action which the plaintiff brought. The action was brought, as I have said, as owner by inheritance and unless the plaintiff could satisfy the Court that he possessed a certificate of title from the Recorder or at least had lodged his claim within the prescribed period, it would seem that the Liwali had no jurisdiction to try the suit. To try the suit was to fly in the face of the provisions of the Land Titles Court Ordinance.

By Sections 6 and 18 of the Ordinance the Land Registration Court is the proper Court to deal with claims to ownership of land, etc. I am not to be taken as laying it down one way or the other that the Liwali has no jurisdiction to decide the ownership of a claim. That may well be another matter but as the plaintiff admittedly has made no claim before the Recorder of Titles at any time, the question does not arise. The mere fact that the defendant himself or his purchaser in title has made a claim does not, it seems to me, put the plaintiff's position in order or give the plaintiff any right to sue in the Liwali's Court.

Even as to the defendant's alleged claim there is no evidence on the record that it was made within the prescribed time, although as the claim has been given a number, it might possibly be argued and may well be true that it was lodged in time. The action brought by the plaintiff appears to me to be a tortuous attempt to defeat the provisions of the Land Titles Court Ordinance and ought not to have been entertained by the Liwali's Court.

I doubt whether the defendant should have been sued at all, and I feel no doubt that the plaintiff had no cause of action in the Liwali's Court. The mere fact that the plaintiff does not recognise for one purpose of his case the sale of the land by the defendant does not cure the want of jurisdiction in the Liwali's Court. I use the words "for one purpose" because the plaintiff does on<br>the other hand appear to argue that because the defendant or his purchaser has put in a claim to the Recorder of Titles, that is sufficient to enable him to sue and to ask for the declaration as to adverse possession against the defendant. I cannot agree with that, nor can I understand clearly what the plaintiff rests his case on, whether ownership by inheritance or ownership by adverse possession.

By Section 37 the plaintiff would appear to have no right, title or interest in the land at the present time against anyone, including the Crown or the defendant or the purchaser from the defendant.

The plaintiff it is true does not seek any declaration against the ownership of the Crown, but he does seek now in this Court a declaration of title as against the defendant, on the ground of adverse possession.

For the reasons which I have endeavoured to explain I am not prepared to give him that declaration. His proper procedure, if any is available to him, is to go to the Land Registration Court.

The appeal is allowed with costs here and in the Court below.