John v Fondo [2024] KEELC 6366 (KLR)

John v Fondo (Environment & Land Case 14 of 2023) [2024] KEELC 6366 (KLR) (2 October 2024) (Judgment)

Neutral citation: [2024] KEELC 6366 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 14 of 2023

EK Makori, J

October 2, 2024

Between

Lucas Nganga John

Applicant

and

A. S Fondo

Respondent

Judgment

1. The Originating Summons herein, dated 23rd June 2023, was filed by the applicant seeking a declaration that he be registered as proprietor of Parcel Tana River/Witu/62, currently registered in the name of A.S Fondo, having acquired the same by way of adverse possession.

2. Despite service through advertisement in the Daily Nation, after this Court had granted leave, the respondents did not enter an appearance nor mount a defence. Consequently, the matter proceeded to a hearing through formal proof on 24th April 2024.

3. The Applicant, Lucas Nganga John, who testified as PW1, was the sole witness. He adopted his affidavit, which he deposed on 23rd June 2023. He also produced the attached documents listed in his affidavit as evidence.

4. The Applicant, Lucas Nganga John, testified that he has lived, possessed, and occupied the suit property owned by the respondents for over 20 years since 2000 before the land fell under the Settlement Fund Trustees (SFT) program. The area administrator confirms this and states that the registered owner, the respondent, cannot be found. The applicant further attached pictures to show the settlement and development on the ground, emphasizing his possession's substantial and long-standing nature.

5. The issues that fall for the determination of this Court are whether the applicant has proved a case on a balance of probabilities that he has acquired the suit property by way of adverse possession. And who should bear the costs of these proceedings?

6. The doctrine of adverse possession is well laid under the Limitation of Actions Act. Section 7 of the said Act places a bar on actions to recover land after 12 years from the date on which the right accrued. Further, Section 13 of the same Act provides that adverse possession is the exception to this limitation:1. (1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.2. Where a right of action to recover land has accrued and thereafter before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.3. For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3) of this Act, the land in reversion is taken to be adverse possession of the land.”Section 38 of the 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.”

7. In the case of Gabriel Mbui v Mukindia Maranya [1993], eKLR adverse possession was defined as:“..the non-permissive physical control over land coupled with the intention of doing so, by a stranger having actual occupation solely on his own behalf or on behalf of some other person, in opposition to, and to the exclusion of all others including the true owner out of possession of that land, the true owner having a right to immediate possession and having clear knowledge of the assertion of exclusive ownership as of right by occupying stranger inconsistent with the true owner’s enjoyment of land for purposes for which the owner intended to use it.”

9. In Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the Court of Appeal defined adverse possession as:“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, twelve (12) years. The process springs into action essentially by default or in action of the owner. The essential prerequisites being that possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity, and in extent to show that possession is adverse to the title owner.”

10. Therefore, for one to claim ownership rights to land by way of adverse possession, one must demonstrate:i.Continuous possession of the property - there must be no interruption in possession of the suit property.ii.The possession of property encroaches on the valid owner’s rights. This may not be the case if the possessor has been rented or received permission from the owner to use it. If either is true, the possession of the land is not truly “adverse.”iii.The adverse possessor must not have attempted to hide their possession claim. It must be open and notorious (kadamnasi or kwa uwazi) in the Swahili language. The possessor must use the property as the owner would without hiding it.iv.The property in question must be in the actual possession of the adverse possessor, not the valid owner, for not less than 12 years.v.The adverse possessor must solely and exclusively control the property himself. If the possessor acts as the valid owner in excluding others from possessing the land, the requirements for adverse possession are achieved.

11. The applicant’s claim to the suit property by adverse possession has not been negatived or challenged. The respondents, as stated, did not enter an appearance or place defence, reinforcing the strength of the applicant's case.

12. Consequently, the applicant’s claim in the Originating Summons dated 23rd June 2023 succeeds and is hereby upheld as prayed. Since the claim was not defended, no order has been made regarding costs.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 2ND OCTOBER 2024. E. K. MAKORIJUDGEIn the Presence of:The ApplicantHappy: Court AssistantIn the absence of:The Respondent