JOSEPH MBATHA NZAVI V AMBROSE MWIKYA NZAVI 3 OTHERS [2013] KEHC 3694 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

Miscellaneous Civil Application 299 of 2009 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>

14. 00

</xml><![endif][if gte mso 9]><xml>

Normal 0

false false false

EN-US X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]

IN THE MATTER OF LIMITATION OF ACTIONS ACT (CAP 22 OF LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR REGISTRATION OF TITLE TO LAND UNDER SECTION 38 OF THE LIMITATION OF ACTIONS ACT

BETWEEN

JOSEPH MBATHA NZAVI .………….…………………………………………… APPLICANT

VERSUS

1. AMBROSE MWIKYA NZAVI

2. JANE KAVINDU KATHUKA

3. RHODA NDULU KATHUKA

4. BROWN NZAVI KATHUKA ………………………………………. RESPONDENTS

R U L I N G

The application by way of Chamber Summons dated 2/10/09 is brought under Order XXXIX Rules 1, 2, 2A (1) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and any other enabling provision of the law.

The application seeks the following orders:-

1. (Spent).

2. THAT an order of injunction do issue against the first Respondent restraining him from selling, charging or transferring land parcel No. Kangundo/Isinga/784, or in any other way interfering with the said parcel of land or the title thereto until the suit herein is heard and final orders given.

3. THAT an order of injunction do issue against the first, second, third and the fourth Respondents restraining them, their agents and/or servants from entering into land parcel No. Kangundo/Isinga/784 and cultivating, ploughing, cutting down trees/coffee plants, planting crops or in any other way interfering with the said parcel of land until the suit herein is heard and final orders given.

4. THAT costs of this application be paid by the Respondent.

The applicant’s case according to the supporting affidavit sworn by the applicant, Joseph Mbatha Nzavi on 2/10/2009 is that the Respondent is the registered owner of the suit property.    That the 1st Respondent who is his younger brother in the year 1978 gave the said parcel of land to the applicant as a gift and authorized him to occupy and use the land and develop it as his own. In the year 2007, the 1st Respondent asked the applicant for Ksh.350,000/= as consideration for the said property before he could effect transfer of the same to the applicant. The applicant duly paid Kshs.350,000/= to the 1st respondent but the transfer was not effected. The applicant’s position is that he has used the suit property since 1978 openly and continuously and cultivated subsistence crops, fruit trees and coffee trees therein.

The applicant’s complaint is that the 1st Respondent has purported to handover and/or sell the suit property to the 2nd Respondent and the 3rd and 4th Respondents have entered the property and planted euphobia plants around it and cut the applicant’s coffee trees.

In opposition to the application, the 1st Respondent, Ambrose Mwikya Nzavi swore a replying affidavit on 11/12/2009. The 1st Respondent denied the applicant’s assertions and stated that the applicant only took advantage because the three parcels of land boarder each other. According to the 1st Respondent, the Kshs.350,000/= paid to him by the applicant was for the rent for the land by the applicant since the year 2005. That prior to the year 2005, their late sister, Beth Nzavi was the one cultivating the land but the sister’s son threatened to sell the land, prompting the 1st Respondent to authorize the applicant to use the land but pay rent for the same.

Mrs Nzei Advocateappeared for the applicant while the firm of Makau & Mulei appeared for the Respondent. The application was canvassed by way of written submissions which I have duly considered.

The applicant’s claim is based on adverse possession. The applicant claims to have been given the land as a gift by the 1st Respondent in the year 1978 and further paid Kshs.350,000/= as consideration for the land for the 1st Respondent to transfer the land to him. On the other hand, the 1st Respondent’s contention is that the applicant started using the suit land on rental basis from the year 2005 hence the payment of Kshs.350,000/=. The applicant and the 1st Respondent are brothers. It seems the suitland is family land that was subdivided between the family members. The applicant’s and the 1st Respondent’s land neighbour each other. According to the affidavit in support, the applicant was cultivating the two parcels of land as one piece. There is also the mention of one Reuben Makau Mutua as one of the family members who is said to have initially managed the land for the 1st Respondent who lives and works in Kisii. Due to these intricate details this is the kind of case which requires a full hearing before the court can tell whether a prima facie case with a probability of success has been established or not.

The balance of convenience would however dictate that preservatory orders do issue pending the hearing and determination of the suit. I therefore allow the application. Costs in cause.

………………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 11thday of April2013.

………………………………………

B. THURANIRA JADEN

JUDGE