John Barasa Matifari v Simon Wanjala Mabonga substituted with Amos Wandabwa Mabonga [2021] KEELC 4576 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT BUNGOMA

ELC CASE NO. 156 OF 2017 (OS)

JOHN BARASA MATIFARI.........................................................................PLAINTIFF

VERSUS

SIMON WANJALA MABONGA

substituted with AMOS WANDABWAMABONGA...............................DEFENDANT

J U D G M E N T

JOHN BARASA MATIFARI(the plaintiff herein) moved this Court by his Originating Summons dated 30th November 2017 and filed on 4th December 2017 against SIMON WANJALA MABONGA (the defendant herein and later substituted with AMOS WANDABWA MABONGA) claiming to have acquired by adverse possession land measuring 9 acres out of the land parcels NO EAST BUKUSU/SOUTH NALONDO 2862, 2861 and 2863 being sub – divisions of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98.  It is his case that his father SIMON MATIFARI MAYUU purchased from the original owner TITILA MAYUU MULWONI9 acres out of the land parcel NO EAST BUKUSU/ SOUTH NALONDO/98 in 1973 and has been in continuous, open and uninterrupted occupation thereof since then until he discovered that the defendant had fraudulently registered himself as the proprietor thereof.  The plaintiff therefore sought a determination of the following: -

1: The plaintiff be declared to have become entitled by adverse possession to the land measuring 9 acres in the land parcels EAST BUKUSU/SOUTH NALONDO/2862, 2861 and 2863 being sub – divisions of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98.

2: That the defendant be found to be holding the title to land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 in trust for the plaintiff and that the same be cancelled.

3: The plaintiff be registered as the sole proprietor of 9 acres out of the land parcels NO EAST BUKUSU/SOUTH NALONDO/2862, 2861 and 2863 respectively in place of the defendant and in default, the Honourable Court do make an order authorizing the Deputy Registrar of this Court to sign and execute all necessary documents to effect the transfer.

4: That in the alternative, the said sub – divisions of land parcel NO EAST BUKUSU/SOUTH NALONDO/98 be declared null and void as they were done irregularly and illegally and that 9 acres be transferred to the plaintiff.

5: That costs be borne by the defendant.

The Originating Summons was supported by the plaintiff’s affidavit dated 20th November 2017 to which were annexed the following documents: -

1. A Limited Grant of Letters of Administration issued to the plaintiff in respect to the Estate of SIMON MATIFARI MAYUU.

2. Judgment in BUNGOMA HIGH COURT CIVIL APPLICATION No 87 of 1999 SIMON MATIFARI .V. TITILA MULWONI.

3. Burial permit in respect of TITILA MULWONI.

4. Citation in BUNGOMA HIGH COURT CIVIL APPLICATION No 223 of 2000 by SIMON MATIFARI .V. PETER KUNDU TITILA & OTHERS.

5. Orders issued in BUNGOMA HIGH COURT CIVIL APPLICATION No 223 of 2000.

6. GAZZETTE NOTICE No 6263 of 14th September 2001.

7. Certificates of Search in respect to land parcels NO EAST BUKUSU/SOUTH NALONDO/2862, 2861 and 2863.

8. Plaint in BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005 – SIMON WANJALA MABONGA .V. JOHN BARASA MATIFARI.

9. Grant of Letters of Administration issued to SIMON MATIFARI.

10. Certificate of Death in respect of SIMON MATIFARI MAYUU.

11. Statement by the plaintiff dated 20th November 2017.

The basis of the plaintiff’s case is that he is the son of the late SIMON MATIFARI MAYUU (MAYUU) who died on 27th October 2010.  That prior to his death, MAYUU had purchased from the late TITILA MAYUU MULWONI (MULWONI) a parcel of land measuring 9 acres out of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 in 1973 on which the plaintiff settled after payment of the full purchase price.  The plaintiff proceeded to build homes and commenced farming thereon.  However, MULWONI refused to transfer the 9 acres to MAYUU who filed a claim at the Tribunal but those proceedings were quashed by the HIGH COURT in MISCELLANEOUS APPLCIATION No 67 of 1999.  MULWONIsubsequently died on 4th March 2000 before transferring the 9 acres to MAYUU.  This forced MAYUU to lodge a citation in respect to MULWONI’s Estate in BUNGOMA HIGH COURT MISCELLANIOUS APPLICATION No 223 of 2000 and SUCCESSION CAUSE No 91 of 2001.  But while those proceedings were pending, the defendant sub – divided the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 into parcels NO EAST BUKUSU/SOUTH NALONDO 2862, 2861and 2863.  He then registered the parcel NO EAST BUKUSU/SOUTH NALONDO/2862 in his names and retained the other two parcels in the names of MULWONI.  The defendant then filed BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005 seeking to evict the plaintiff but that case appears not to have been determined.  It is the plaintiff’s case that he has continued to live on the land purchased by his father continuously and peacefully even after the death of his father in 2010 together with his grandchildren for a period over 38 years hence this suit.

The plaintiff’s claim is resisted and the defendant filed a replying affidavit dated 28th February 2018 in which he deponed, inter alia, that he is the registered proprietor of the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 measuring approximately 2. 8 Ha which he purchased from MULWONI on or about 21st February 1995.  That at the time of the transaction, the plaintiff was in occupation of a small section of the said parcel with licence of MULWONIand it was therefore mutually agreed between the three of them that the plaintiff would deliver possession of that section to the defendant within a reasonable time.  However, MULWONI passed away before the plaintiff could deliver possession thereof to the defendant.  The plaintiff then went ahead to occupy the whole land thus preventing the defendant from use of the same.  This prompted the defendant to file BUNGOMA SENIOR PRINCIPAL MAGISTRATE CIVIL CASE No 5 of 2005 seeking an order of permanent injunction and to compel the plaintiff to deliver the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862.  His claim was allowed by a Judgment delivered on 23rd July 2007 and the plaintiff’s application to set it aside was dismissed.  However, the plaintiff appealed and the HIGH COURT BUNGOMA in CIVIL APPEAL No 69 of 2007 ordered that the suit be heard afresh.  The matter went before HON MOGUTE but there was yet another appeal against a ruling which was dismissed in BUNGOMA HIGH COURT CIVIL APPEAL No 41 of 2015.  The defendant denied that the plaintiff’s father MAYUU had purchased 9 acres of land from MULWONI and asked the Court to dismiss this claim terming it as an abuse of the Court process and lacking in merit.  He also denied that the plaintiff has been in continuous, peaceful and notorious occupation of the land in dispute.

Together with the replying affidavit, the defendant filed the following documents: -

1. Title deed for the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 registered in his names since 12th July 2002.

2. Sale agreement dated 21st February 1995 between MULWONI (seller) and the defendant (buyer) with respect to a portion measuring 7 acres out of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98.

3. Payment slips acknowledging payment of the purchase price.

4. Plaint in BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005.

5. Memorandum of Appeal in BUNGOMA HIGH COURT CIVIL APPEAL No 69 of 2007.

6. Judgment delivered on 18th September 2012 in BUNGOMA HIGH COURT CIVIL APPEAL No 69 of 2007.

7. Memorandum of Appeal in BUNGOMA HIGH COURT CIVIL APPEAL No 41 of 2015.

8. Ruling in BUNGOMA HIGH COURT CIVIL CASE No 41 of 2015.

Having substituted his deceased father as defendant herein, AMOS WANDABWA MABONGA filed a witness statement dated 2nd March 2020.  The statement is a rehash of the replying affidavit filed by his late father.

The hearing commended on 26th October 2020 and the parties were the only witness who testified in support of their respective cases.  They adopted their respective affidavits and statements and also produced their list of documents as their evidence.

Submissions were thereafter filed both by MR SICHANGI instructed by the firm of J. W. SICHANGI & COMPANY ADVOCATES for the plaintiff and by MR OCHARO instructed by the firm of OCHARO KEBIRA & COMPANY ADVOCATESfor the defendant.

I have considered the evidence by the parties and the submissions by Counsel.

The plaintiff’s claim is based on adverse possession.  It is his case that his late father MAYUU purchased a portion of land measuring 9 acres from the initial owner MULWONI out of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 in 1973 and has been in open, continuous and un-interrupted occupation thereof.  That the said land was subsequently sub – divided to give rise to parcels NO EAST BUKUSU/SOUTH NALONDO/2862, 2861 and 2863 and that the defendant therefore holds the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862in trust for him.

In the case of TITUS KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS C.A CIVIL APPEAL No 35 of 2002 [2004 eKLR], the Court of Appeal stated that a person claiming land registered in the names of another through adverse possession must prove: -

“ ……. that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition.”

He must also demonstrate that he has been in possession and occupation of the land in dispute without force, secrecy or evasion – nec vi nec clam nec precario – KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & COMPANY LTD 1980 KLR 10.

In a recent exposition on the doctrine of adverse possession, the Court of Appeal had the following to say in the case of MTANA LEWA .V. KAHINDI NGALA MWAGANDI C.A CIVIL APPEAL No 56 of 2014 [2015 eKLR]: -

“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period.  In Kenya, it is twelve (12) years.  The process springs into action essentially by default or inaction by the owner.  The essential pre – requisite being that the possession of the adverse possessor is neither by force or stealth or under licence of the owner.  It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.”

Section 38(1)of theLimitation of Actions Act on which the Originating Summons is founded states that: -

“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in Section 37 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.”

That is the remedy that the plaintiff seeks in this case.

In his submissions, Counsel for the defendant in urging this Court to dismiss the plaintiff’s claim has stated that the portion of land sought by the plaintiff is not identifiable.  He has cited my decision in the case of ABRAHAM BARASA SONGOI .V. DISMAS WANYAMA MAWANI 2020 eKLR where among the reasons the Court gave in rejecting the plaintiff’s claim to land by way of adverse possession was because the plaintiff had only described the land as “3 acres or thereabout.”  That decision is however distinguishable from the situation obtaining in this case.  In this case, it is clear from the prayer No. 1 of the Originating Summons that the plaintiff seeks to have become entitled to by way of adverse possession: -

“ …. to the parcel of land measuring 9 acres in land remedy E. BUKUSU/S. NALONDO/2862, 2861 and 2861 being subdivisions of E. BUKUSU/S. NALONDO/98. ”

The claim herein is not as vague as was the position in theABRAHAM BARASA SONGOIcase (supra).  I must add that the vague description of the land was not the ratio decidendi in that case.  Of course whether or not the plaintiff is entitled to those 9 acres is what this Court must now determine.

The plaintiff’s case is that his late father MAYUU took possession of 9 acres comprised in the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 pursuant to a purchase in 1973.  That upon full purchase, his father settled him in the said portion where he started farming and built homes.  However, the seller MULWONIrefused to transfer the portion to MAYUU who filed a claim at the Land Disputes Tribunal as was the practice then.  The plaintiff’s occupation of a portion of the original land parcel NO EAST BUKUSU/SOUTH NALONDO/98 is really not in dispute.  Indeed, it is conceded both in the replying affidavit of the defendant and in the statement of AMOS WANDABWA MABONGA.  What is disputed is the size.  In paragraph 5 of his replying affidavit, the defendant averred as follows: -

5: “That at the time of purchase, the Applicant was in occupation of a small section of that parcel of land under licence of TITILA MUYUU MULUONI.”

And in paragraph 4 of his statement, AMOS WANDABWA MABONGA repeats the same averment and states: -

4  “At the time of the purchase, the applicant was in occupation of a small section of that parcel of land under licence of the seller”

It is therefore not in dispute that by the time the defendant purchased a portion out of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 from MULWONI by the agreement dated 21st February 1995, the plaintiff was already in occupation and possession of a portion thereof.  The plaintiff’s case is that he took occupation and possession thereof in 1973 and that has not been rebutted and the Court must therefore accept that indeed that was when the plaintiff entered the land.

Counsel for the defendant has submitted, citing the cases of SISTO WAMBUGU .V. KAMAU NJUGUNA 1983 eKLR and also NDIEMA SAMBURI SOTI .V. ELVIS KIMTAI CHEPKESES 2010 eKLR, that the plaintiff was in occupation and possession of the portion of land with the consent of the owner and therefore he cannot claim to be in adverse possession.  It is clear from the plaintiff’s supporting affidavit that his late father took occupation and possession of a portion measuring 9 acres out of the land parcel NO EAST BUKUSU/SOUTH NALONDO/98 in 1973 after paying the full purchase price.  This is what he stated in paragraph 4 thereof.

“That upon payment of full purchase price, my father settled me in the said parcel and I started farming, build homes and settled there in the same year 1973 to – date.”

Essentially therefore, the plaintiff herein cannot be described as a licence.  He took possession of the land after paying the “full purchase price.”  In PUBLIC TRUSTEE .V. WANDURU 1984 KLR 314, MADAN JA (as he then was) stated that a purchaser in possession of land after having paid the purchase price is a person in whose favour the period of limitation can run because from the date of payment of the purchase price, the owner is dispossessed of the land.  Further, such a person enjoys both equitable and overriding interests binding on the land.  That position was also affirmed by the Court of Appeal in the case of PETER MBIRI MICHUKI .V. SAMUEL MUGO MICHUKI 2014 eKLR where the Court stated thus: -

“It is our considered view that when the appellant entered into a sale agreement with the plaintiff in 1964 and received the purchase price for the suit property, the appellant became a trustee holding the suit property in favour of the plaintiff.  The plaintiff having paid the purchase price and took possession acquired an equitable beneficial interest in the suit property.”

See also GATIMU KUNGURU .V. MUYA GATHANGI 1976 KLR 53.  I took the same view in        WANAMBUKO NYONGESA MUKETHE .V. PATRICK KITUYI NAMBALE & OTHERS 2020 eKLR where the entry to the land being claimed by way of adverse possession was initially through a sale agreement.  Clearly therefore, nothing stops a purchaser in occupation and possession of land from claiming it by way of adverse possession.

Although the plaintiff has laid claim to 9 acres out of the land parcels NO EAST BUKUSU/SOUTH NALONDO/2862, 2861 and 2863, it is clear from the Certificates of Search that only the land parcel NO EAST BUKUSU/SOUTH NALONDO 2862 is registered in the names of the defendant who has been sued in his own capacity and not as the legal representative of the Estate of TITILA MAYUU MULWONI in whose names the other parcels are registered.  The plaintiff has indeed pleaded among the issues for determination in paragraph 2 of his Originating Summons that the defendant holds the title to the parcel NO EAST BUKUSU/SOUTH NALONDO/2862 in trust for him.  By the time the defendant purchased the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 vide the agreement dated 21st February 1995, the plaintiff had been in occupation thereof for 22 years.  And cognizant of the law that a mere change of ownership of land claimed under adverse possession does not interrupt the rights of the adverse possessor, this Court finds that the sale agreement between the defendant and MULWONI in respect to 7 acres out of the land parcel NO EAST BUKUSU/ SOUTH NALONDO/98 did not affect the overriding rights of the plaintiff who was already in occupation and possession of a portion thereof – GITHU .V. NDEETE 1984 KLR 776.

The plaintiff avers that since 1973, he has occupied a portion of the original land parcel NO EAST BUKUSU/SOUTH NALONDO/98, and thereafter the resultant sub – divisions openly, peacefully, exclusively and un-interrupted with the knowledge of the defendant.  That evidence was not rebutted and the only way that the defendant could have interrupted that occupation and possession was by filing a suit against the plaintiff or by the plaintiff admitting his title – GITHU .V. NDEETE.

Counsel for the defendant has in his submissions referred to various cases as having not only interrupted the plaintiff’s occupation and possession of the land which he claims but also as a demonstration that the said occupation and possession was not peaceful.  Reference has been made to the Tribunal proceedings filed in 1999 at the KIMILILI LAND TRIBUNAL by MAYUU against MULWONI and which award was quashed by MBITO J in BUNGOMA HIGH COURT MISCELLANEOUS CIVIL APPOLICATION No 87 of 1999.  The truth of the matter however is that having taken occupation and possession of the portion of land which was purchased in 1973 by his late father MAYUU, the 12 years’ limitation period had lapsed by 1985 and the cases filed in 1999 and thereafter could not interrupt the plaintiff’s adverse possession.

Counsel for the defendant has also submitted that this suit is infact an abuse of the Court process and is res – judicata in view of the Judgment in BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005.  However, the Judgment of HON MOGUTE PRINCIPAL MAGISTRATE delivered in that case on 25th July 2018 cannot support a plea of res – judicata in these proceedings because the claim of adverse possession was not in issue in that case.  For res – judicata to apply under Section 7of theCivil Procedure Act, the matter in issue must have been directly and substantially in issue in a previous suit.  A perusal of the plaint in BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005 shows that the reliefs which the plaintiff therein (the defendant herein) was seeking against the defendant therein (the plaintiff herein) was an order compelling the defendant to deliver to the plaintiff the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 and a permanent injunction to restrain the defendant from using cultivating or enjoying any rights over the said parcel of land.  There was no issue of adverse possession raised or determined in that case and therefore, the plea of res – judicata cannot be sustained in these proceedings.  Similarly, a claim for adverse possession could not be pleaded in the Subordinate Court since jurisdiction was only vested in the High Court pursuant to Section 38(3) of the Limitation of Actions Act.

The defendant’s Counsel has also submitted that the plaintiff is not in possession of any definite and identifiable parcel of land.  He has submitted that the plaintiff’s pleadings lack specificity and that he (plaintiff) just threw material to the Court and left it to the Court to speculate.  My decision in the case of ABRAHAM BARASA SONGOI (supra) has been cited in urging me to dismiss the plaintiff’s claim but as is now clear, the pleadings in this case cannot be described as lacking specificity as was the position in the ABRAHAM BARASA SONGOI case (supra).  I have already indicated above that the plaintiff is laying claim by adverse possession to the land parcel measuring 9 acres.  In any event, the answer as to exactly what parcel of land the plaintiff is infact in occupation of was provided by the defendant himself in the pleadings in BUNGOMA SENIOR PRINCIPAL MAGISTRATE’S COURT CIVIL CASE No 5 of 2005.  In that case, the defendant (as plaintiff) sought the following two substantive orders against the plaintiff (as defendant) as is clear from the Judgment therein: -

a. “An order compelling the defendant to deliver to the plaintiff all that parcel of land comprised in the title No E. BUKUSU/S. NALONDO/2862. ”

b. “A permanent injunction restraining the defendant by himself, his servants or agents or otherwise howsoever from preventing the plaintiff from using, cultivating and enjoying his rights over land parcel NO E. BUKUSU/S. NALONDO/2862. ”

The Certificate of Search for the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 shows that it measures 2. 8 Hectares which translates to 6. 9 acres.  The defendant could only have been seeking orders to evict the plaintiff from the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 because he (plaintiff) was infact occupying that parcel of land.  Therefore, “the small section” of the original land parcel NO EAST BUKUSU/SOUTH NALONDO/98 which, as claimed by the defendant, the plaintiff was in occupation of by the time of the sale agreement dated 21st February 1991, was infact the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862.  It is also clear from prayer No 2 of the plaintiff’s Originating Summons that among the issues that the plaintiff seeks this Court to determine is: -

2:      “That the Respondent be found to be holding tile to parcel NO E. BUKUS/S. NALONDO/2862 in trust for the Applicant and that the same be cancelled.”

Basically, a person who purchases land which another person is already in adverse possession thereof becomes a trustee holding the same in trust for the party in possession.  Among the overriding interests recognized by Section 28(h) of the Land Registration Act include: -

“rights acquired or in the process of being acquired by virtue of any written law relating to limitation of actions or by prescription.”

A similar provision exists in Section 30(f) of the repealedRegistered Land Act under which the suit land was registered.

Having considered all the evidence herein, I am satisfied that the plaintiff has established his case against the defendant as required in law.  There shall be Judgment for the plaintiff against the defendant in the following terms: -

1. The plaintiff is declared to have become entitled by adverse possession to the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 measuring 6. 9 acres.

2. The defendant’s rights in the said land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 have been extinguished by operation of the law.

3. The defendant shall within thirty (30) days of delivery of this Judgment execute all the necessary documents to facilitate the transfer of the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 in the names of the plaintiff.

4. In default of (3) above, the Deputy Registrar of this Court shall be at liberty to execute such documents on behalf of the defendant.

5. The plaintiff shall have costs of the suit.

Boaz N. Olao.

J U D G E

28th January 2021.

Judgment dated, signed and delivered at BUNGOMA this 28th day of January 2021 by way of electronic mail in keeping with the COVID – 19 pandemic guidelines.

Right of Appeal explained.

Boaz N. Olao.

J U D G E

28th January 2021.