Johnson Nehondo v Christopher Nashisako & Fredrick Namatsi [2015] KECA 35 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, OUKO & KANTAI, JJ.A)

CIVIL APPEAL NO. 161 OF 2012

BETWEEN

JOHNSON NEHONDO ……………................APPELLANT

AND

CHRISTOPHER NASHISAKO…….. 1ST RESPONDENT

FREDRICK NAMATSI ………………..2ND RESPONENT

(An appeal from the Judgment and Decree of the High Court of Kenya at

Kakamega (Chitambwe, J) dated 30th September, 2010 In H.C.C.C. NO. 335 OF 1988 (OS))

JUDGMENT OF THE COURT

Like most disputes involving land, this appeal is an example of a protracted litigation that no doubt has drained the three families involved in terms of money, energy and time.   The dispute can be traced to a sale agreement entered into in 1975 between  Aggrey Nyapola  and the  1st  respondent,  Christopher Nashisako, (Christopher),   in   which   the   former  sold to the  latter land parce No. WANGA/LUBINU/1191, measuring 5 acres, (the suit land) which was a sub- division of original parcel No. WANGAILUBINU/585, measuring 17. 5 acres.

This sale immediately sparked controversy.  First, the vendor alleged that he had only sold three and not five acres. This led Christopher to register a caution against the land title on 7th August,  1974 claiming purchaser's  interest. At the same  time,  the  vendor  filed  in  the  Resident  Magistrate's   Court  at  Kakamega R.M.C.C.  No. 36 of 1975 claiming  two acres from the land sold to Christopher. The suit was dismissed.   An appeal to the High Court in HCCA No. 72 of 1975 was similarly dismissed.

One of the vendor's  sons, James Amabia Nyapola also instituted an action against his father, Aggrey Nyapola and Christopher in Kakamega RMCC No. 100 of 1984 claiming ownership of the suit property.  This suit was also dismissed.

In  1987,  Christopher  sold  the  suit property  to  Fredrick  Namatsi,  the  2nd respondent, fermenting further controversy over the ownership of the suit property. The  new  purchaser, the  2nd  respondent,  sought vacant  possession by instituting, Kakamega  RMCC No. 576 of 1988 to evict another son of the vendor, Johnson Nehondo  Nyapola,  the  appellant  herein,  who  in  turn brought  an  originating summons  against Christopher and the 2nd respondent  claiming ownership  of the suit  property through adverse possession. It is this action that has given rise to the present appeal.  It would appear that the application for eviction was not pursued because of the claim by the appellant.

After  receiving  evidence  from  both sides  of the  dispute, the trial Judge (Chitambwe, J.) in a judgment rendered on 30th September, 2010 held that although there had been suits involving some of the parties in the originating summon  and relating  to the same subject matter as that in the originating  summons, the High Court (G.B.M. Kariuki, J., as he then was) had found  on a notice of preliminary objection that the originating summons was not res judicata those other suits.  The learned Judge found on the merit of the suit that the plaintiff in the originating summons,  who is the appellant herein, failed to demonstrate that he had been in quiet possession of the suit property for a period of twelve (12) years.  He said;

"I have  no reason to doubt the  averments in the  plaint in  PMCC No. 576  of 1988  that the  plaintiff herein went  to the  suit  land  in 1987.   His  claim  for  adverse possession can only  run  from 1987  when  he took  possession of a  portion of the suit  land. This being the case and the current suit having been   filed   in 1988,   I do   find   that the   plaintiff has   not established that he has been actual possession of the suit land for over 12 years before he filed this suit."

With that, the learned Judge concluded, on the basis of that finding, that the appellant was not entitled to be registered as the proprietor of the suit property as an adverse possessor.  The action was dismissed with costs, prompting this appeal, raising nine (9) grounds which were condensed and argued by Mr. Akwala, learned counsel for the appellant in three clusters.

First, it was submitted that the learned Judge erred in dismissing the case against the weight of overwhelming  evidence that the appellant had been in quiet possession of the suit property since birth in 1956 up to the present day; that  at the time  Christopher  transferred  the suit property to the 2nd   respondent  in 1987 the former's interest on it had been extinguished; that the appellant has all along lived on and worked the suit land openly, exclusively, continuously, uninterrupted and peacefully; and that both Christopher and the 2nd respondent had never been  to the suit land.

Secondly, it was argued that, after correctly finding that  Christopher  and the 2nd  respondents have never taken possession of the suit land and that the originating summons  was not res judicata, the learned Judge erred in relying on those earlier suits to dismiss the originating summons.  Finally, it is the appellant's  case that the learned Judge based his reasons for dismissing the appellant's case on conjecture, speculation and insinuations and failed to analyse the issues before him.

Mr.  Ombito,  learned  counsel  representing  the  respondents,  support the decision of the Judge.  In his view, the appellant had failed to present evidence to support  the  claim  for  adverse  possession.   ·     For instance,   he  submitted ,  the appellant's occupation  of the suit property has never been quiet; that there  have been  law suits and a restriction  placed  in the register challenging  its ownership between  1975  and  1988; that while these  were happening  the appellant  was an adult but failed to stake his claim of ownership in any of those suits.

This  is  a  first  appeal  and  our  duty  as  directed  in  Selle  &  Another  Vs. Associated  Motor  Boat  Company  Ltd.[1968] EA  123,  is  to  re-evaluate  the evidence on record in order to arrive at our own independent conclusion.  As  we do so, we bear in mind that we did not see or hear the witnesses to be able to assess their demeanour.

In terms of sections 7 and 17 of the Limitation of Actions Act, after the end of twelve years from the date on which the right of action accrued no action can be brought   to recover land and the title of the registered   proprietor   will   be extinguished.  The two sections provide as follows;

"7.  An action  may not be brought by any  person  to recover  land  after  the  end  of  twelve  years  from  the  date  on  which  the  right  of action  accrued to him or, if it first  accrued to some  person through whom he claims, to that  person.

…………………………………………………………………….

17.  Subject   to  section  18  of  this  Act,  at  the  expiration of  the  period  prescribed by this Act for a person  to bring  an action, to recover  land  (including a redemption action),  the  title  of that  person to the land is extinguished."

The period of twelve years starts to run from the moment the trespasser takes adverse possession of the land and the registered proprietor is regarded as having been dispossessed or having discontinued his possession.  In the leading c se of Wambugu  Vs. Njuguna [1983]  KLR 172  this Court summarized  the law on adverse possessions in its holding as follows:-

"Held:-

1.   The   general   principle is that   until the   contrary is proved, possession in law follows the right to possess.

2.  In  order to  acquire  by  the  statute of  limitations title  to  land which  has a known  owner,  that  owner  must  have lost his right  to, the land either by being dispossessed of it or by having discontinued 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  be intended to use it..................

3. 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 'bolder bas been dispossessed or  bas  discontinued his possession for  the  statutory period and  not  whether or  not  the  claimant bas  proved that be bas  been in possession for  the requisite number of years.

4.  Where the claimant is  in  exclusive  possession of  the  land  with leave  and  licence  of  the  appellant in  pursuance to  a  valid  sale agreement, the  possession become  adverse and  time  begins  to run at the  time  the  licence  is determined. Prior to the  determination of the  licence  the  occupation is not  adverse but  with  permission. The  occupation can  only  be  either with  permission or  adverse; the  two concepts cannot co-exist.........

5.  The  rule  on  "permissive  possession" is that  possession does  not become adverse before the  end  of  the  period during which the possessor is permitted to occupy  the land……....

6.  Adverse possession means that a person is in possession, in whose favour time can run. Not all persons in possession can have time run in their favour.................time cannot run in favour of a licensee. A licensee therefore has no adverse possession (Hughes v. Griffin [1969) 1 WLR 23. "

Apart from the above, the following principles also apply when considering an application under section 7of the Limitation of Actions Act.

i)  For the registered  owner of land to be dispossessed, the party claiming ownership  by  adverse  possession must  demonstrate the  existence  of acts   done   on   the   suit   property   which   are  inconsistent  with the registered owner's  enjoyment of the land for the purpose for which he intended  to  use  it. See Ngati  Farmers  Co-operative  Society Limited V. Councilor John Ledidi & 15 others, Nkr CA No. 94 of 2004.

ii)  The mere change of ownership of land which is occupied by an another person  under  adverse  possession,  does  not  interrupt  such  person's adverse possession.

iii)  Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possessor.  Assertion occurs when the owner takes legal proceedings  or  makes  an effective  entry  into  land.    See  Githu  V. Ndeete [1984] KLR 776.  Running of time will not be interrupted by sending a notice or letter from the true owner to the claimant.

iv)  Exclusive   physical   control   of   the   land   must   depend   on the circumstances  of each case, the nature of the land and the manner in which land of that nature is commonly used or enjoyed. See Powell V. McFarlane [1977] 38 P & Cr. 452.

Arising from these principles,  we must  consider the following  two questions;

i) Whether Christopher was dispossessed or discontinued his possession of the suit property; and

ii) Whether the appellant's possession was exclusive, continuous, uninterrupted and peaceful for twelve years.

The answers to these questions will be supplied by the evidence presented before the High Court, to which we now turn.

The appellant's case advanced by himself and two witnesses was that he was born in 1956 on the suit property which belonged to his father, Aggrey Nyapola and has known  no other  home but the suit property. He has developments  on the land which include houses, trees, subsistence crops and a fish pond; that his father  had three  wives;  that before the sub-division  the suit property  was known  as WANGA/LUBINU/585  measuring  17½ acres. He stated that the original was sub-divided into 3, but gave only Nos: 1190 and 1191 (the suit land).   The former was retained by his father while 3 acres from No. 1191 (the suit land) , was in 1969 allocated to his mother.  But shortly in 1975, she left the appellant's   father and got married elsewhere.  It was not until 1984 when Christopher was selling the suit  land  to the  2nd  respondent  that he (the appellant)  learnt that his father had disposed  of it to Christopher.   He maintained, in this connection, that he was not aware of the court actions that had been brought over the suit land.

It would appear from the extracts of the register submitted as evidence that in 1977 a portion of the second parcel No. 1190 (measuring 3. 5 acres) out  of the sub-division  was sold and transferred to the 2nd  respondent on 21st July, 1977 by Christopher  at a consideration of Kshs. 3,500/=.

In his testimony Christopher maintained that when he purchased the suit land from the appellant’s father, it was still part of the original parcel.  A dispute arose as to the actual size  of the  land  purchased.  This forced Christopher to register a caution against the title in 1974 to forestall any further dealings.

In 1975, that caution was withdrawn and the title was closed upon sub-division division into Nos. 1190 and 1191. The law suits alluded to at the beginning of this judgment then ensued.  Later, Christopher sold the suit land to the 2nd respondent. The 2nd respondent on the other hand confirmed that the appellant lives and uses the suit land.

It is not in dispute that the appellant was born on the suit land in 1956. Parcel No. EAST WANGA/LUBINU/585 was created in 1966 and registered in the name of Aggrey Nyapola, the appellant's  father. Parcel No. 1191 measuring  five acres was created in 1975 yet the appellant claimed before the trial court  that it was given to his mother in 1969. In 1972 the mother left Aggrey Nyapola and was re-married  elsewhere. As these  events took place, the suit property was not in  existence. It could  not  have  been  available  to  be  allocated  to  the  appellant's mother.  As a matter of fact, as early as 1974 there was already a dispute regarding the size of the parcel Christopher had purchased from the appellant's father. In the suit filed in 1984 by the appellant's brother, James, against their father, Aggrey Nyapola and Christopher, being  Kakamega  RMCC  No.    100 of 1984, James claimed that the suit land was gifted to him by their father but when he, (James) returned from Uganda he found it had been sold.

We pause here to ask, whose land was parcel No. 1191? Was it Aggrey Nyapola's estranged wife, Sarah Nyapola's  or did it belong to James?  It was even suggested  by one of the appellant's  witnesses that Aggrey Nyapola gifted the suit land to the appellant.  Considering the suit brought by James in Kakamega RMCC. No. 100 of 1984, E.M. Githinji, SRM, as he then was, easily found that;

".......This suit is clearly a conspiracy between the plaintiff and 1st defendant to defraud the 2nd defendant of the land but the plaintiff's claim is misconceived."

The 1st  and 2nd  defendants  referred  to  in the  above  passage were James Amabia Nyapola and Christopher, respectively.  Aggrey Nyapola, according  to the appellant, died in 1999, that is ten years after the suit giving rise to this appeal was filed.   Twenty four (24) years before his death he had transferred the suit land to Christopher.  Prior to that period, the appellant grew up to be an adult on the land. His  occupation  was with  the  permission  of  his  father,  who  was  the  registered owner and as long as his father was living, he could not inherit from him or claim title  by virtue  of statute  of limitation.   He has not claimed that the father was registered  as his or the family's  trustee.   His father, therefore,  as the registered owner  of  the  property, had  the  absolute  and  indefeasible  right  over  it and the freedom  to  dispose of  it.   This Court  said  as  follows  in  Muriuki  Marigi V. Richard Marigi Muriuki & 2 others  Nyeri C.A. No. 189 of 1996.

"The appellant as the registered owner of the suit property is still alive.   His  property is not  yet  available for  sub-division  and distribution among  his wives and  children except  if he personally on his own free  will decides  to sub-divide and  distribute it among them.   He may not be urged, directed or ordered to do it against his own will."

The appellant’s father exercised his right over his parcel of land, transferred it and gave Christopher a good title.  It is not in doubt that as Aggrey Nyapola sold the suit property to Christopher, the appellant was on the land as were all his (Nyapola's) family members. In such transactions, it is an implied term that the vendor covenants to give vacant possession.

A situation  where after sale and transfer  by the registered  owner  of land, members of his family tum around to claim title by adverse possession on account of the period of time they have lived on the land would indeed lead to an absurdity.

Christopher and by extension, the 2nd respondent did not lose their right to the suit land by dispossession.  There was no evidence of any acts by the appellant over and above those which were on the land when it was sold, that would suggest dispossession.   The  appellant's  presence  on  the  land  before  it  was  transferred constituted  'permissive  possession'  which is incapable of being adverse.   In any case, after the transfer, Christopher and the 2nd respondent continued to assert their rights by instituting legal proceedings to get vacant possession.   Aggrey Nyapola never challenged the sale.    What he challenged was the size of the portion Christopher, was entitled to in terms of the sale agreement.

In his judgment regarding this Aganyanya, J. (as he then was) in Kakamega H.C. Civil Appeal No. 72 of 1985 said;

"Appellant did not allege fraud in his claim against the respondent  in   the   suit   subject  to   this   appeal   (sic)   but contents (sic)  that he sold  the  respondent only  3 acres  and not 5 as appears on the  title. What does a reasonable court make of this? Would  the  appellant have  any  reasonable probability  of  success   even  if  the   case  were   allowed   to precede  to hearing? I highly doubt.

The case subject to this appeal, apart from being 'res judicata' was misconceived and was rightly dismissed by the learned Senior Resident Magistrate. I cannot  interfere with  the  lower  court's decision  and  this  appeal  has  no  merit.   I dismiss it with costs."

As far as the suit land (No.  1191)  is concerned,  the  appellant  has not persuaded  us that the learned trial Judge erred in finding that his claim to title by virtue of the statute of limitation was not proved.  However, contrary to the finding by the learned trial Judge that the originating summons was not res judicata , we think the observation by Githinji, SRM and Aganyanya, J. respectively that these suits are a conspiracy  by family members to renegotiate the sale transaction and that the successive suits instituted by members of the family are aimed at achieving  this  objective  hence  res  judicata.   Family members sought to  reclaim  the suit property and wore different masks each time they appeared on the stage but  each time they would be unmasked by the court.

Like the learned Judge, we are seeking an answer to the question; is the appellant's claim related to the suit land (No. 1191) or No. 1190?  We noted earlier that apart from the 5 acres comprised in No. 1191 transferred by Christopher, on 21st July, 1977 at a consideration of Kshs. 3,500/= Aggrey Nyapola also sold  to the 2nd   respondent  3. 5  acres  of  a  sub-division  of  parcel  No.  1190 subsequently registered as parcel No.  1239. This happened 10 years before Christopher transferred the suit land to the 2nd respondent.  The 2nd respondent now holds 8. 5 acres of the 17. 5 acres of the original parcel No. 585.

Could this be the source of the dispute?  We do not know the answer.

We find no merit in this appeal which we hereby dismiss with costs.

Dated and delivered  at Kisumu this 23rd day of April 2015.

D.K.MARAGA

JUDGE OF APPEAL

W.OUKO

JUDGE OF APPEAL

S. Ole KANTAI

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR