Malala Lubale Luvisia v Chrispinues Egesa Tangara, James Oseme Tangara & Jonai Namukuru Tangara [2015] KEHC 2995 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 77/2014(FORMERLY HCC. 66/2011)

MALALA  LUBALE LUVISIA…………………..............…………………………………APPLICANT

=VERSUS=

CHRISPINUES EGESA TANGARA)…………..............…………………………….1ST RESPONDENT

JAMES OSEME TANGARA…………………..............……………………………..2ND RESPONDENT

JONAI NAMUKURU TANGARA…………...............………………………………...3RD RESPONDENT

J U D G M E N T.

MALALA  LUBALE LUVISIA ,the  Plaintiff, filed  the originating summons dated 26th September, 2011 against  CHRISPINUS  EGESA TANGARA, JAMES  OSEME  TANGARA and JONAI  NAMUKURU  TANGARA, hereinafter  referred to as 1st to 3rd Defendant seeking  to be registered  as the proprietor  of Bukhayo/Ebusibwabo/349  under adverse possession doctrine and costs. The Plaintiff  stated that  the Defendants  placed him on the said land  following  a sale agreement in 1989 and has been in actual possession , peacefully, openly and for uninterrupted  period  of over 12 years.

The Defendants opposed the Plaintiff’s claim through the replying  affidavit sworn by the 1st  Defendant on 17th October, 2011.  The 1st Defendant  deponed that the suit land belonged to their late father, Julius  Tangara  Arwasi who died on 6th February, 1979. That he  filed Succession  Cause No. 105 of 2007 through  which they inherited the suit land.  That  the Plaintiff  has been living  on the suit land as a squatter and has declined to vacate even after being asked to do so through the area administrators.   The deponent also stated that the Defendants  are in the process  of apportioning the suit land  among themselves.

When  this case came up for hearing on 21st April, 2015, Mr. Manwari  and Okutta  advocates for the Plaintiff and Defendants respectively agreed to have witness evidence  affidavit sworn by the Plaintiff and Samuel  Nyangweso Mapesa  on 27th January, 2014 and the Plaintiff’s  list of documents dated 30th April, 2013 admitted as the  Plaintiff’s evidence.  They also  agreed to have the witness evidence affidavit  sworn by Alfred  Arwasi Iseme  on 24th February, 2015  and the copy of the certificate  of confirmation  of grant  admitted as the Defendants’  evidence. The counsel then by consent  closed the cases of their respective clients and undertook to file written submissions. The Plaintiff’s  written submission dated 19th May, 2015 was filed on 20th May, 2015 while that for the Defendants dated 14th May, 2015 was filed on 20th  May, 2015.  The Plaintiffs  then filed a reply to the Defendants’ submissions on 16th June, 2015.

The issues  for determination in this case from the pleadings, affidavit  evidence  and submissions are as follows;

Whether  the Plaintiff took possession of the suit land in 1989, and if so, whether it was with the Defendants consent.

Whether,  if the answer  to (a)  above  is in the affirmative, the  consent  by Defendants has been withdrawn  or determined and  if so, when.

Whether  the Plaintiff’s occupation  and possession of the suit land has been terminated or interrupted between  1989 and the date of filing  of the suit.

Whether  the Plaintiff’s  occupation of the suit land has become adverse to the title of the registered  proprietor  and if so from when.

Whether  Plaintiff  is entitled  to be registered with the suit land.

Who  should pay  the costs of this suit.

5.  ANALYSIS OF THE EVIDENCE AND SUBMISSIONS.

That the affidavit evidence  tendered by  both parties and the documentary  evidence  in the nature of certificate of search for Bukhayo/Ebusibwabo/349  dated 5th January, 2007  shows that the said land was first registered on 15th January, 1971 in the names  of Tangara Arwasi who was the father to the Defendants.

The affidavit  evidence availed by the Defendants through the replying affidavit  also shows that their father died on 6th February, 1979 intestate and that the 1st Defendant  filed Nairobi H.C. Succession Cause  No. 105 of 2006 in which he was appointed  the administrator and the grant was confirmed on 5th October , 2009. The copy of the certificate of confirmation of the grant admitted as    exhibit by consent of both counsel  shows that  the only property of the estate was Bukhayo/Ebusibwabo/349 and that it  was to be shared equally between the Defendants.

That the  affidavit evidence  availed  by the Plaintiff and Defendants   confirms  that the Plaintiff was the one in possession of the whole  land parcel Bukhayo/Ebusibwabo/349.  This  was also  confirmed by  Alfred  Arwasi Iseme at  paragraph 8 of his  affidavit sworn on 24th January, 2015.

That the Plaintiff’s evidence  that he took possession of the suit land following the sale agreement  between  the  2nd Defendant  and himself  in August, 1989  has not been disputed.  However  the court is unable to verify  the Plaintiff’s claim that the 2nd Defendant entered  the sale agreement  on behalf   of himself  and  the 1st and 3rd Defendant as  no copy of the sale agreement was availed to the court.  On the side of the Defendants they appear to dispute the Plaintiff’s claim through the affidavit of Alfred Arwasi  Iseme who deponed that the Plaintiff had only bought the portion that the 2nd Defendant  was entitled to.  From the evidence offered by both parties, it is crystal clear that there is a dispute as to whether the plaintiff  bought the whole suit land or only a third portion that the 2nd  Defendant was entitled  to.  However both parties agree, as already shown  above, that the Plaintiff took  possession  and has continued to use the whole suit land and not just a portion of it.

That  there is no evidence  adduced  by any of the  parties  to confirm whether  the sale agreement  between the Plaintiff and the 2nd Defendant  received the Land Control Board consent. The  provision of sections 6 and 8  of the Land Control Act  Chapter  302,  of Laws  of Kenya states that agreements for  sale of agricultural land  be subject to the  consent of the Land Control Board being obtained within six months.   Where  the consent  is not obtained  the agreement  for sale becomes void pursuant to section 7 of the said Act. In such  a situation  the purchaser cannot seek specific performance  but only refund of the monies paid under  the agreement.  In absence  of documentary evidence of the consent having  been obtained from the  relevant Land Control Board, the court concludes that the 1989 land sale agreement between the Plaintiff  and 2nd Defendant , whether  for the whole or part of the suit land, became void after the expiry  of six months from August, 1989.

That  flowing from the above, the court finds that the Plaintiff took possession of  the suit  land in August 1989 with the consent  or permission of the 2nd Defendant  as a purchaser. The occupation  of the suit land by the Plaintiff was therefore not adverse to the title of the registered proprietor  of the suit land for the duration  he occupied the land as a purchaser.  The period  the Plaintiff occupied the suit land as a purchaser was for six months from August, 1989 to February, 1990 when the sale agreement became void for absence of the consent of the land Control Board.

That the registered proprietor  of the suit land and the  Defendants  who had beneficial  interests over the suit land did not interrupt  the Plaintiff’s  occupation and possession of the suit land after the sale agreement became void in February, 1990.  The Plaintiff’s continued  stay on the land from February, 1990 became adverse to the  title of the registered proprietor, Tangara Arwasi and by March, 2002  the Plaintiff became  an adverse possessor of the suit land in accordance with section 18 of the Limitation of Actions Act Chapter  22 of Laws of  Kenya.

That by the time the 1st Defendant  filed the Succession  Cause  of his father’s estate and   obtained   confirmation of grant in 2009 to the effect that the suit land be shared equally between the three Defendants, it was subject to the rights  of the Plaintiff as an adverse  possessor. [see PETER  Thuo Kairu –vs- Kuria Gacheru (1988) KAR.That  by the time the Defendants  were registered  as joint owners of the suit  land on 9th February, 2010 through  transmission, they  got so registered subject to the Plaintiff’s interests and rights as an adverse  possessor.

That while this suit was pending in court the Defendants had the suit land subdivided into parcels Bukhayo/Ebusibwabo/4216 and 4217 which were registered in their joint names on 26th October, 2011.  This prompted the Plaintiff to apply to the court,  through the notice of motion dated 1st February, 2012 for inhibition orders to secure the legal status of the two parcels. The  court takes  this action to have been an attempt by the Defendants  to defeat the cause  of justice  by dealing with the suit property in a manner that  was detrimental  to the interest of the Plaintiff as an  adverse possessor of the suit land.  The court  expresses its displeasure on the Defendant conduct.

6. CONCLUSION.

That the Plaintiff initial entry  on the suit land  Bukhayo/Ebusibwabo/349, which has  since been subdivided  into Bukhayo/Ebusibwabo/4216 and 4217,  in August, 1989 was  as a purchaser and therefore a lisencee of the  2nd Defendant.

That the  sale agreement  between  Plaintiff and 2nd Defendant  of August, 1989  became  void in February, 1990 pursuant to section 7 of the Land Control  Act Chapter  302  of Laws of Kenya.

That the Plaintiff’s continued  stay  on the suit land after February, 1990 was adverse to the title of the registered  proprietor, Tangara Arwasi.

That under section 7  of the Limitation of Action Act Chapter 23 of the Laws of Kenya, the registered  proprietor  of the suit land, and or those with beneficial interests had a period  of 12 years from March, 1990 to reclaim the suit land  from the Plaintiff and none did so.

That by March, 2002, the Plaintiff’s rights and interests over the suit land, as an adverse possessor under section 18  of the Limitation  of Action Act, had crystallized and the title of the registered proprietor  had been  extinguished.

That the Defendants  title  to the suit  land and the two subdivisions thereof  have equally been extinguished by the Plaintiff’s entitlement as an adverse possessor.

That the Plaintiff has  established  his claim based  on adverse possession against  the Defendants on a balance of probabilities  and the court orders as follows;

That the Defendants interests on land parcel Bukhayo/Ebusibwabo/4216 and 4217,  which are subdivisions from Bukhayo/Ebusibwabo/349,  have been  extinguished under section 18 of  the Limitation  of Action Act Chapter 23 of Laws of Kenya.

That the Plaintiff is hereby  declared the owner of Land parcel Bukhayo/Ebusibwabo/4216 and 4217, which are  subdivisions from Bukhayo/Ebusibwabo/349, under adverse possession.

That the Defendants  are hereby ordered to transfer  land parcels  Bukhayo/Ebusibwabo/4216 and 4217, which are subdivisions from Bukhayo/Ebusibwabo/349, to the Plaintiff  herein  and in default  the Deputy Registrar  of this court do sign all  such necessary documents to  effect the said transfer.

The Defendants to pay the Plaintiff the costs of  this suit.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …15TH………..DAY OF  JULY, 2015.

IN THE PRESENCE OF;

PLAINTIFF…………………………………………………………………………………..

1ST DEFENDANT…………………………………………………………………………….

2ND DEFENDANT…………………………………………………………………………….

3R  DEFENDANT……………………………………………………………………………..

COUNSEL…………………………………………………………………………………….