Josiah & another v Wathumi [2023] KEELC 22081 (KLR)

Josiah & another v Wathumi (Enviromental and Land Originating Summons E028 of 2022) [2023] KEELC 22081 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22081 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Enviromental and Land Originating Summons E028 of 2022

BM Eboso, J

December 4, 2023

Between

Bilha Watoro Josiah

1st Applicant

Stanley Kagai Maina

2nd Applicant

and

Kiburi Wathumi

Respondent

Judgment

1. On 31/8/2022, the two plaintiffs took out an originating summons dated 29/8/2022 inviting the court to issue the following verbatim adverse possession orders:1. Spent2. A declaration that the interest of the respondent in that parcel of land known as Komothai/ Kibichoi/ T.138 has been extinguished by the applicants’ adverse possession thereof for a period of more than 12 years in terms of Section 17, 37 and 38 of the Limitation of Actions Act.3. A declaration that the applicants have acquired the freehold interest in land parcel number Komothai/ Kibichoi/T.138 by their adverse possession thereof for a period of more than 12 years.4. An order directing the Land Registrar Kiambu to register the applicants as the absolute proprietors of land parcel number Komothai/ Kibichoi/ T.138 to hold the same in equal shares in place of the respondent.5. An order directing the Land Registrar Kiambu that the order herein shall be an instrument of transfer of ownership of the whole suit land and parcel Komothai/ Kibichoi/ T.138 from the respondent to the applicants.6. That costs of this suit be borne by the respondent.

2. The originating summons was premised on the sixteen (16) grounds itemized in the summons. It was anchored on Sections 17 and 38 of the Limitation of Actions Act; Section 7(d) of the Land Act; and Order 37 rule 7 of theCivil Procedure Rules. It was supported by their respective affidavits sworn on 29/8/2002.

3. On 7/11/2022, this court granted the plaintiffs leave to effect service of summons through a prominent notice in either the Daily Nation Newspaper or the Standard Newspaper. An affidavit of service sworn on 20/12/2022 by Timothy K. Simiyu was subsequently filed, indicating that the defendant had been served through a notice published in the Standard Newspaper on 10/12/2022. The defendant neither entered appearance nor filed a response to the originating summons. Consequently, the originating summons was heard as an undefended cause on 26/7/2023. It was canvassed through brief written submissions dated 8/8/2023. It now falls for Judgment.

4. The two plaintiffs are mother and son. The 1st plaintiff contends that she has lived on the suit land since 1964. She has raised all her seven children on the land. The 2nd plaintiff is one out of the seven children of the 1st plaintiff who call the suit land their home. The 1st plaintiff contends that she has been in open and uninterrupted adverse possession of the suit land for a period of approximately 59 years, commencing from 1964. It is her case that the defendant has been aware of her adverse possession and has never objected to it.

5. I have considered the originating summons together with the evidence and submissions that were tendered. The defendant did not oppose the originating summons. The plaintiff exhibited an official search dated 22/8/2022, showing that the suit land was at the time of initiating this suit registered in the name of Kiburi Wathumi. The contention that the 1st plaintiff has been in open and uninterrupted adverse possession of the suit land since 1964 has not been controverted. Similarly, the contention that the plaintiffs have developed the suit land has not been controverted.

6. The plaintiffs took out the originating summons jointly. It, however, emerged during trial that the 2nd plaintiff entered and lived on the land by dint of him being one of the seven (7) children of the 1st plaintiff. In light of that, I do not think the 2nd plaintiff has an independent claim of title over the suit land under the doctrine of adverse possession. Were the court to grant the 2nd plaintiff independent orders of adverse possession in respect of the suit property, this will prejudice his six siblings who, like him, have lived on the suit property by dint of the fact that their parents were adverse possessors of the land.

7. Taking into account the foregoing, the court is satisfied that Bilha Watoro Josiah has proved, on the balance of probabilities, that she has acquired title to land parcel number Komothai/ Kibichoi/ T.138 under the doctrine of adverse possession. Consequently, adverse possession orders are hereby granted to her in terms of prayers 2, 3, 4 and 5 of the originated summons dated 29/8/2022. The 2nd plaintiff’s claim is rejected on the ground that he has lived on the said land by dint of being one of the seven children of the 1st plaintiff who acquired title to the suit land upon expiry of 12 years from the date of her entry onto the land.

8. Given that the originating summons was undefended, there will be no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 4TH DAY OF DECEMBER 2023B M EBOSOJUDGE