Mangara v Makanda (Substituted with (Everlyne Nakhumicha Wamacheke)) [2023] KEELC 18555 (KLR)

Mangara v Makanda (Substituted with (Everlyne Nakhumicha Wamacheke)) (Environment & Land Case 17 of 2018) [2023] KEELC 18555 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18555 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment & Land Case 17 of 2018

BN Olao, J

July 6, 2023

Between

Bernard Wanyonyi Mangara

Plaintiff

and

Mweba Makanda

Defendant

Substituted with (Everlyne Nakhumicha Wamacheke)

Judgment

1. As will soon become clear by the end of this judgment, the description “The Terror Of Kisiwa Location” Which Is Within Bungoma County Aptly Fits Bernard Wanyonyi Mangara (the plaintiff).

2. By his Originating Summons dated 20th April 2018, the plaintiff sought a determination of the following questions as against Pius Mweba Makanda (the defendant and later substituted with his wife Everlyne Nakhumicha) With Regard To The Land Parcel No East Bukusu/south Nalondo/7214 (the Suit Land) And formerly parcel No East Bukusu/south Nalondo/237):1. Whether the said Pius Mweba Mukanda is the registered owner of the land parcel No East Bukusu/south Nalondo/7214. 2.Whether the plaintiff has been in open and notorious possession of the land parcel No East Bukusu/south Nalondo/7214 measuring 9. 5 acres for a period exceeding twelve (12) years continuously and without interruption and be declared the absolute owner of the 9. 5 acres of the land parcel No East Bukusu/south Nalondo/7214. 3.Whether the defendant’s title to the said 9. 5 acres of the land parcel No East Bukusu/south Nalondo/7214 was extinguished upon expiry of twelve (12) years from the time the plaintiff went into occupation and possession of the land parcel of land.4. Whether the plaintiff has now acquired title to the said 9. 5 acres of the land parcel No East Bukusu/south Nalondo/7214 by virtue of adverse possession and that the plaintiff be registered as the absolute owner of the said parcel of land.

3. Arising out of those determinations, the plaintiff beseeched the Court to grant him the following orders:a.That the defendant’s right over the 9. 5 acres of the land parcel No East Bukusu/south Nalondo/7214 got extinguished by way of adverse possession upon expiry of twelve (12) years and the plaintiff be declared the absolute owner of the parcel of land.b.That the defendant and whoever may be claiming through him be perpetually barred and restrained from interfering with the said land parcel NO East Bukusu/south Nalondo/7214. c.That the costs of this Originating Summons be borne by the defendant.

4. The Originating Summons is supported by the plaintiff’s affidavit also dated 20th April 2018 in which he has deposed, inter alia, that on 5th May 1978 his late mother Rispah Nakhumicha purchased from the defendant a parcel of land measuring 4 acres to be hived off from the land parcel No East Bukusu/south Nalondo/237 on behalf of the plaintiff who was then still in college. That the purchase price was paid in instalments on 5th May 1978, 4th April 1979 and 15th June 1979 as per the copies of agreements annexed as BM1. Thereafter, between 1983 to 1989, the plaintiff purchased another 5. 5. acres of land from the defendant to be hived from the suit land. He completed the payment in 1989 when the transaction was incorporated into one agreement signed by both parties. That he has been living on the suit land since 1978 but is yet to be given title to the portion measuring 9. 5 acres. That when he tried to sell a portion measuring ¾ to one PIUS SIMIYU, the defendant resisted saying that the land did not belong to him but instead, it belonged to his (plaintiff’s) deceased uncle one Joshua Wanjala.

5. The plaintiff also filed a statement dated 20th April 2018 simply rehashing the contents of his supporting affidavit.

6. The plaintiff also filed a statement of his witness Chrisantus Barasa (pw2) Dated 22Nd June 2019. In The Said Statement, Chrisantus Barasa Confirmed That He Knows Both Parties And Is Aware That In 1978 Risper Nakhumicha purchased the suit land which had been advertised for sale by the defendant. That he has always known the suit land, which borders his land, to belong to the plaintiff.

7. The plaintiff also filed the following documents which were annexed to his supporting affidavit:1. Copy of sale agreement dated 5th May 1978 between the defendant and one JOSHUA OPICHO.2. Copy of sale agreements dated 4th April 1979 and 15th June 1979 between defendant and RISPA NAKHUMICHA.3. Acknowledgment slips dated 19th August 1985 and 6th February 1989 between plaintiff and defendant.

8. The defendant filed a replying affidavit dated 21st June 2018 in response to the Originating Summons. He also annexed to the said affidavit the following document:1. Certificate of official search in respect to the land parcel No East Bukusu/south Nalondo/7214 in his name,Following his demise, he was substituted with his wife Everlyne Nakhumicha WamachekE (DW1) who recorded her statement dated 6th January 2022.

9. The following witnesses also recorded statements on behalf of the defendant: 1. Jameson Makali Wasike (dw2).

2. Veronica Nafula Joshua (dw3).

3. Joseph Wanjala Otoa (dw4).

4. Eliud Wafula Munyekho (dw5).

10. In his replying affidavit, the defendant described the plaintiff’s Originating Summons as frivolous, vexatious and full of half-truth and mis-information calculated to deceive the Court. He confirmed that he is the registered proprietor of the suit land since 28th July 2017 as per the annexed copy of the Official Search annexed thereto and also holds the title deed issued on 23rd January 2018. Therefore, a period of 12 years has not elapsed since he acquired the title. He however denied that the plaintiff’s mother Rispa Nakhumicha had purchased any parcel of land from him adding that she had infact only completed the repayment of Kshs.300 on behalf of one Joshua Wanjala Opicho who had purchased 4 acres of land from the defendant of which Rispa Nakhumicha was only a care-taker. Therefore, the allegation that the defendant sold land to the plaintiff is not only false but also baseless. That the plaintiff only came to the suit land in 1982 to visit his mother Rispa Nakhumicha who was living on the suit land as the care-taker for Joshua Wanjala Opicho who had purchased 4 acres of land which was delineated with a distinct boundary.

11. That the plaintiff’s stay on the suit land has never been peaceful and continuous for a period of 12 years or more because in 1984, the plaintiff tried to build a permanent house on the 4 acres belonging to Joshua Wanjala Opicho but his (plaintiff’s) mother stopped him. That sometime in 1992, the plaintiff tried to plough the suit land without his permission and the defendant complained to Rispa Nakhumicha who restrained him from doing so. That in 2000, the plaintiff tried to slash Joshua Wanjala Opicho Who Had Confronted Him From Trying To Harvest Murram On His Land And In 2005, Rispa Nakhumicha Died And Was Buried On The 4 Acres Purchased By Joshua Wanjala Opicho. That In 2006, The Plaintiff Started Digging Murram From Joshua Wanjala Opicho’s 4 Acres Who Told Him To Vacate. This Infuriated The Plaintiff Who Threatened To Slash Joshua Wanjala Opicho to death and the incident was reported to the Chief who summoned the plaintiff but he did not honour the summons. That in 2008, the plaintiff entered into an agreement with one Pius Simiyu For The Sale Of A Portion Of Land Belonging To Joshua Wanjala Opicho. Again The Matter Was Reported To The Chief After The Plaintiff Took A Panga And Chased Joshua Wanjala Opicho. When The Plaintiff Was Asked To Produce His Agreement, He Produced Altered And Forged Agreements. The Matter Was Reported To The Assistant County Commissioner. However, Before The Assistant County Commissioner Could Hear The Matter, Joshua Wanjala Opicho Died. That The Plaintiff’s Occupation And Use Of 4 Acres Of Land Belonging To Joshua Wanjala Opicho and part of the defendant’s land has never been peaceful and continuous as they have had tussles which have been dealt with by the clan and village elders, the Chief and the Assistant County Commissioner. The plaintiff cannot therefore allege that his occupation of the suit land has been peaceful, continuous and open.

12. The defendant repeated the same averments in his statement dated 23rd July 2019.

13. Having been appointed as the Administratrix of the Estate of the defendant, his wife Everlyne Nakhumicha Wamacheke (dw1) Recorded A Statement Dated 6Th January 2022 In Which She Stated That She Had Been Appointed As Administratrix Vide Bungoma Chief Magistrate’s Court Succession Cause No 53 Of 2020. That The Defendant Was The Owner Of The Land Parcel No East Bukusu/south Nalondo/237 When He Married Her In 1980. That The Defendant Told Her He Had Sold 4 Acres Of That Land To Joshua Wanjala Opicho. That In 1980 Joshua Wanjala Opicho Introduced Her To Rispa Nakhumicha As Her Sister Indicating He Wanted Rispa Nakhumicha To Take Care Of The Land. After A Week, Joshua Wanjala Opicho And Rispa Nakhumicha Returned With Building Materials, Constructed A Semi-permanent House In Which Rispa Nakhumicha Started Living. Then In 1982, The Plaintiff Came With His Wife And Son And Started Staying In The Kitchen Of His Mother’s House. After Some Time, The Plaintiff Tried To Construct A House On The Land Belonging To Joshua Wanjala Opicho But His Mother Rispa Nakhumicha Stopped Him Saying She Was Only A Care-taker On The Land And That He Could Not Do So Without Getting Permission From Joshua Wanjala Opicho. After Sometime, Joshua Wanjala Opicho returned to the land and there have been several disputes handled by the village elders and the County Commissioners. That there are other people occupying the suit land and it is not true that the plaintiff is occupying the entire land.

14. James Makali Masike (dw2) Is The Secretary Of The Bachemweile Clan. In His Statement Dated 23Rd July 2019, He States That He Is The Nephew Of Joshua Wanjala Opicho Who Had Purchased 4 Acres Of Land From The Defendant But Which Was Occupied By The Plaintiff. On 21St March 2018, The Clan Summoned The Plaintiff Who Failed To Honour The Summons Prompting The Family Of Joshua Wanjala Opicho to seek the intervention of County Commissioner. Again the plaintiff did not respond to the summons and the parties were advised to go to Court.

15. Veronica Nafula Joshua (dw3) Recorded Her Statement Dated 23Rd July 2019 In Which She Stated That She Married The Late Joshua Wanjala Opicho In 1958. That On 5Th May 1978, Her Late Husband Purchased 4 Acres Of Land From The Defendant And Paid Kshs.6,000 But The Balance Was Paid Through Rispa Nakhumicha. In 1980, Her Late Husband Allowed Her Sister-in-law Rispa Nakhumicha Who Is The Plaintiff’s Mother To Settle On The 4 Acres Of Land As Care-taker After She Had Been Divorced By Her Husband. Joshua Wanjala Nakhumicha Then Constructed A Semi-permanent House For Her Where She Was Later Joined By Her Son The Plaintiff. That When The Plaintiff Tried To Construct A Permanent House On The Land, His Mother Rispa Nakhumicha Restrained Him Saying The Land Belonged To Joshua Wanjala Opicho And That If The Plaintiff Wanted To Construct A Permanent House, He Should Do So At His Father’s Land At Milani.

16. That as a fact, the plaintiff’s occupation of the suit land has never been peaceful and open because during the lifetime of JOSHUA WANJALA OPICHO, he (plaintiff) was warned several times about constructing a permanent house on the suit land or utilizing it. The dispute was taken to the village elder and later to the Chief and County Commissioner.

17. Joseph Wanjala Otoa (dw4) Recorded His Statement Dated 23Rd July 2019 In Which He States That He Was The Secretary When Joshua Wanjala Opicho Purchased 4 Acres Of Land Vide The Sale Agreement Dated 5Th May 1978. Then In 1980, Joshua Wanjala Opicho Settled His Sister One Rispa Nakhumicha On The 4 Acres Following Her Divorce And In 1982, She Was Joined By Her Son The Plaintiff. Later The Plaintiff Wanted To Construct A House On The Suit Land But Was Stopped By His Mother Because The Land Belonged To Joshua Wanjala Opicho. When Rispa Nakhumicha Died In 2005, She Was Buried On The Land With The Blessings Of The Clan. Joshua Wanjala Opicho Later Died In 2017. The Witness Confirmed Therefore That Joshua Wanjala Opicho bought 4 acres from the defendant and that he was the one who drafted the sale agreement.

18. Eliud Wafula Muyekho (dw5) Was The Chief Of Kisiwa Location In 2006 When Joshua Wanjala Opicho Went To His Office In The Company Of Wilfred Wele And Emmanuel Wafubwa And Complained That The Plaintiff Was Without His Permission, Excavating Murram From His Land Which He Had Purchased From The Defendant. The Witness Summoned The Plaintiff To His Office But He Did Not Honour The Summons. In 2008, The Witness Received Other Complaints From Joshua Wanjala Opicho And Summoned The Plaintiff Who Came With An Agreement Claiming That He Had Purchased The Suit Land. However, Joseph Wanjala Otoa (dw4) Who Was Present Informed The Chief That He Was The One Who Had Drafted The Sale Agreement Between Joshua Wanjala Opicho And The Defendant But Added That The Agreement Produced By The Plaintiff Was A Forgery. When Joshua Wanjala Opicho Passed Away In 2017, His Widow Veronica Nafula Joshua (dw3) came to follow up on the dispute. A clan meeting was called and the parties were advised to go home and discuss. However, the meeting did not take place because the plaintiff threatened to harm anyone who would attend. The witness therefore states in his statement dated 23rd July 2019 that to the best of his knowledge, the plaintiff has not stayed on the suit land peacefully and there are long outstanding issues touching on the land which are yet to be resolved.

19. The hearing commenced on 28th February 2022 and the parties and their witnesses testified and adopted as their evidence the contents of their affidavits and statements contents of which I have already summarized above. They also produced as their documentary evidence the documents annexed to their respective affidavits.

20. Submissions were thereafter filed both by Mr Kundu Instructed By The Firm Of Situma & Company Advocates For The Plaintiff And By Mr Anwar Instructed By The Firm Of Anwar & Company Advocates for the defendant.

21. I have considered the evidence by the parties and their witnesses both oral and documentary as well as the submissions by counsel.

22. Arising out of the pleadings and the testimonies herein, I consider that the only issue calling for my determination is whether the plaintiff is entitled to a portion of the suit land measuring 9. 5 acres, or any portion thereof, by way of adverse possession or indeed, if he has any recognized interest in any portion of the suit land.

23. The plaintiff’s claim is anchored on adverse possession.

24. Section 38(1) of the Limitation of Actions Act provides that:38(1): “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.”It is now well established that the combined effect of the provisions of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the registered proprietor of land in favour of an adverse possessor at the expiry of 12 years of the adverse possession – Benjamin Kamau & Others -v- Gladys Njeri C.a. Civil Appeal No 213 Of 1996.

25. In Kasuve -v- Mwaani Investments Ltd & Others 2004 I KLR 184, the Court of Appeal stated:“And in order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right and without interruption for a period of 12 years either after dispossessing the owner or by the discontinuation of possession by the owner of his own volition – Wanje -v- Saikwa (No 2) 1984 KLR 284. ”And as was held by Kneller J In The Case Of Kimani Ruchine -v- Swift Rutherfords & Co. Ltd 1980 Klr 10;“The plaintiffs have to prove that they have used this land which they claim as of right; nec vi, nec clam, nec precario (no force, no secrecy, no persuasion).Therefore, for a claim of adverse possession to succeed, the possession of the land by the claimant must not be clandestine nor by stealth or violence. It must be open, peaceful, uninterrupted and as of right.

26. The plaintiff’s case is that vide an agreement dated 5th May 1978, his mother Rispa Nakhumicha Purchased On His Behalf 4 Acres From The Defendant Out Of The Suit Land And Subsequently Between 1983 To 1984, He Purchased A Further 5. 5 Acres From The Defendant. That When He Sold ¼ Acre Of The Land To One Pius Simiyu, The Defendant Told Him That He (plaintiff) Is Not The Owner Of The Land Which Infact Belongs To His Joshua Wanjala Opicho. This is what he has averred in paragraphs 2, 3 and 5 of his supporting affidavit. 2:“That on the 5th May 1978, my mother RIspah Nakhumicha (now Deceased) Bought Four (4) Acres Of Land On My Behalf From Pius Mweba Mukanda To Be Hived From Land Parcel No E. Bukusu/s. Nalondo/237, Now Land Parcel No E. Bukusu/s. Nalondo/7214. ”

3:“That upon the purchase of the four (4) acres, my mother paid the agreed purchase price to the Respondent/seller on diverse dates on the 5th May 1978, 4th April 1979 and 15th June 1979. ”

5:“That I subsequently bought 5. 5. acres of land from the Respondent from the year 1983 to 1984 which was to be hived from land parcel No East Bukusu/south Nalando/237. ”That had been rebutted by the (deceased) defendant who stated in paragraphs 6, 7, 8 and 9 of his replying affidavit thus:

6:“That I know for a fact that the Applicant’s mother has never bought any parcel from me but completed repaying the purchase price of Kshs.300 for Joshua Wanjala Opicho whom I had sold 4 acres and which the Applicant’s mother’s was a caretaker.”

7:“That I further know for a fact that I have never sold any land to the Applicant herein and thus his allegation that I sold him land is not only false but baseless.”

8:“That I further know for a fact that I have never sold the Applicant herein any parcel or received monies from him over purchase of land thus the agreement annexed as BWM-2 is a forgery.”

9:“That I know for a fact that the Applicant herein came to the suit parcel on or about 1982 and this was to visit his mother Rispa Nakhumicha Who Was Staying In The Suit Land Occupying 4 Acres That I Had Sold To Joshua Wanjala Opicho as caretaker.”On her part, following her substitution as the defendant herein, Everlyne Nakhumicha states in paragraphs 3, 4 and 5 of the statement dated 6th January 2022 that:“I got married to Pius Mweba Mukanda in the year 1980 and at the time of my marriage to him, he was owner of all that parcel of land known East Bukusu/South Nalondo/237. Soon after my marriage, he introduced me to Joshua Wanjala Opicho and indicated that he had sold to him 4 acres of his land.”“I do recall sometime in September 1980, Joshua Wanjala Opicho Came In The Company Of A Woman Whom Introduced Herself As Risper Nakhumicha His Sister And Wakhulia Mung’au. He introduced the sister to me and my husband and indicated that she wanted the sister to take care of the land on his behalf. After a week thereafter, they again came with building materials and after constructing a semi-permanent house, he left the sister to take care of the land and the sister began residing there.”“In 1982, the Applicant herein came and settled on the land this, after relocating from Milani Area. He Came Together With His Wife And One Son And Started Staying With His Mother Risper Nakhumicha On The Land Belonging To Joshua Wanjala Opicho.”There are two (2) land sale agreements both produced by the plaintiff and both dated 5th May 1978. One agreement is in Kibukusu Language While The Other Is In Kiswahili And Both Have No English Translation Notwithstanding My Directions On 28Th February 2022. However, I Have Always Taken The View That Since Article 7 Of The Constitution Recognizes Kiswahili As Both The National And Official Language, The Court Can Admit Documents In Kiswahili Language Notwithstanding Lack Of Translation Into English Language. That Is The Route I Took In Simon Khaemba Mwanja (deceased) -v- Jamin Wasike Khaemba & Another 2020 eKLR.

27. One of the agreements produced by the plaintiff and dated 5th May 1978 reads as follows in Kiswahili:“Mimi ni Pius Mweba Mukanda Nauzia Joshua Opicho eka Tisa (9 acres) kwa kila moja elfu mbili (2,000/=).”That translates as follows in English:“I Pius Mweba Mukanda Have Sold My Land To Joshua Opicho nine acres (9 acres) at two thousand shillings (2,000/= per acre).”It is clear from the above that the parties to the sale agreement were the defendant and Joshua Wanjala Opicho. The Plaintiff Was Not A Party And Although Further Down The Agreement His Name Appears, He Admitted During Cross-examination By Mr Anwar that there were alterations made in the agreement. He said:“It is true that the agreement has some alterations of the acreage from (4) acres to five (5) acres. The agreement was drafted by Joseph Wanjala Otoa.”

28. The defendant himself confirmed in his replying affidavit that it was Joshua Wanjala Opicho Who Purchased 4 Acres Out Of The Suit Land From Him And That The Plaintiff’s Mother Rispa Nakhumicha Was Only A Care-taker. That Was Also Corroborated By Joseph Wanjala Otoa (dw4) Who Drafted The Sale Agreement. It Cannot Therefore Be Correct For The Plaintiff To Allege, As He Has Done In Paragraph 2 Of His Supporting Affidavit, That His Mother Rispa Nakhumicha “bought Four Acres Of Land On My Behalf From Pius Mweba Mukanda To Be Hived From Land Parcel No E. Bukuku/s. Nalondo/237. ” The Land Was Purchased By Joshua Wanjala Opicho For His Sister Rispa Nakhumicha Whose Marriage Had Broken Down. Indeed, There Is Evidence That When The Plaintiff Tried To Put Up A Permanent House On The Land, His Own Mother Stopped Him Saying It Belonged To Joshua Wanjala Opicho. That is very clear from the following passage in paragraph 5 of the statement of Everlyne Nakhumicha’s statement dated 6th January 2022:“After some time, the Applicant herein tried to construct a house on the land belonging to JOSHUA Wanjala Opicho but his mother stopped him indicating that the land was not hers and that she was only a care-taker and that he needed to seek permission from the uncle – Joshua Wanjala Opicho.”This is also corroborated by Veronica Nafula Joshua (dw3) The Wife To Joshua Wanjala Opicho Who In Her Statement Dated 23Rd July 2019 States That After Her Husband Purchased 4 Acres Of Land From The Defendant, He Allowed His Sister Rispa Nakhumicha Who Is The Mother To The Plaintiff To Take Care Of It. She Denied That The Plaintiff Had Purchased The Land Adding That When The Plaintiff Tried To Construct A Permanent House On The Land, His Mother Restrained Him From Doing So Reminding Him That The Land Belonged To Joshua Wanjala Opicho.

29. It is evident from all the above that the plaintiff’s claim to the suit land by way of adverse possession, is premised on the allegation that he entered it as a purchaser. It is of course correct that a purchaser to land can make a claim to it on the basis of adverse possession – Public Trustee -v- Wanduru 1984 Klr 314. However, The Plaintiff Never Purchased The Suit Land From The Defendant Or Any Other Person. He Was Invited To The Suit Land By His Mother Rispa Nakhumicha Who Was Herself Only A Care-taker Invited By Her Brother Joshua Wanjala Opicho To Take Care Of The Land And Who Therefore, As A Mere Licensee, Could Not Have Mounted Any Claim To The Suit Land By Way Of Adverse Possession Against Either Joshua Wanjala Opicho As The Equitable Owner Following The Purchase, Or The Defendant As The Registered Proprietor. By Relying On An Agreement Which Did Not Confer Any Interest In The Suit Land To Him, The Plaintiff Was Basically Basing His Claim On Stealth Or Secrecy. In The Case Of Mtana Lewa -v- Kahindi Ngala Mwagandi 2015 eKLR, the Court of Appeal said of adverse possession that:“The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or 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.” Emphasis added.

30. It would have been a different scenario if the plaintiff had infact executed a sale agreement with the defendant over the portion of the suit land which he claims, and that agreement, for one reason or another such as failure to obtain the request consent of the Land Control Board if necessary, became null and void. However, in this case, there was no sale agreement at all between the plaintiff and the defendant, whether null and void or unenforceable for one reason or the other. The plaintiff tried to alter the agreement to suggest that he had made payments to the defendant. There was no relationship with the defendant whether by contract or family over the suit land. Even if this Court was minded to impose a constructive trust in favour of the plaintiff as was the case in Kitilit -v- Kibet 2018 Eklr, There Would Have Been No Basis For Doing So. Clearly, The Plaintiff’s Occupation Of The Suit Land Cannot Be Described As Being “nec Vi, Nec Clam, Nec Precario,” A Latin Phase Which Means, As Lord Hoffman Put It In R. V. Oxfordshire Ex-parte Sunningwell Parish Council 1999 3 AlL E.R, “not by force nor stealthy nor by the license of the owner.” The plaintiff’s entry on the suit land and his continued occupation thereof being hinged on stealth, his claim of the land by way of adverse possession is not sustainable.

31. Secondly, the plaintiff’s occupation was required to be peaceful in order to justify orders in adverse possession. Again in the case of Grace Wairimu Sorora -v- Chaka Ltd & Others 2017 eKLR, the Court of Appeal emphasized the need for a claimant to show that his occupation of the land he claims was peaceful it said:“What the appellant needed to prove was that her occupation was continuous, open and peaceful without permission of the owner.” Emphasis added.The plaintiff’s occupation and possession of the suit land has not ben peaceful at all. As early as 1984, barely 4 years after he moved onto the suit land, he was already having disputes both with his uncle JOshua Wanjala Opicho, The Defendant, And Even His Own Mother Rispa Nakhumicha had to intervene. In paragraphs 11 and 12 of his replying affidavit, the defendant has deposed as follows: 11:“That I further know for a fact that even the stay of the Applicant in the suit land has never been peaceful and continuous for a period of 12 years and more as sometime in 1984, the Applicant herein tried to build a permanent house on the 4 acres belonging to Joshua Opicho but the Applicant’s mother stopped him informing him that the land they were occupying belonged to Joshua Opicho and subsequently they have been having issues with Joshua Opicho and myself over the use and occupation of the suit land and thus, he cannot allege that his stay in the suit land has been peaceful, continuous and open.”

12. “That I further know for a fact that sometime in 1992, the Applicant herein embarked on preparing a portion of my land for farming without my permission and when I got clue of the same, I went and complained to Rispa Nakhumicha the mother of the Applicant herein, who called the Applicant and told him to refrain from his provocative activities which he did.”

It is clear, therefore that even long before the expiry of the 12 years statutory period which would have justified the plaintiff to lay a claim to the suit land by way of adverse possession, the plaintiff was already having disputes with the defendant “over the use and occupation of the suit land.”

32. The plaintiff’s cantankerous and hostile conduct did not end in 1984 or 1992, unfortunately. As is clear from the defendant’s replying affidavit, that conduct continued. In 2000, the plaintiff threatened to “slash” Joshua Wanjala Opicho Who Had Confronted Him For Harvesting Said On The Suit Land (paragraph 13) And Also Threatened To Slash Joshua Wanjala Opicho “to Death And Chased Him With A Panga” An Incident Which Was Reported To The Chief (paragraph 16). And Even When The Chief Eliud Wafula Muyekho (dw5) Called A Meeting And Tried To Have The Widow Of Joshua Wanjala Opicho and the plaintiff resolve the dispute amicably at home, the plaintiff did not corporate and instead, as stated in the statement of the Chief, the plaintiff “threatened to harm anyone who turned up for the meeting.” There is nothing to suggest that the Chief would want to give false testimony against the plaintiff. That explains why at the commencement of this judgment, I had no qualms describing the plaintiff as a “terror”.

33. As is now clear, the plaintiff’s occupation of the suit land has not been peaceful. His claim based on adverse possession can therefore be only for dismissal.

34. It is also important in a claim to land by way of adverse possession for the claimant to demonstrate that the registered proprietor of the land which he claims has been dispossessed of it. In the case of Wambugu -v- Njuguna 1983 KLR 173, the Court of Appeal held as follows:“For an order to acquire by the statute of limitations title to land which has a known owner, the owner must have lost his rights 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 of which he intended to use it.The proper way of assessing proof of adverse possession would then be whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period and not whether or not the claimant has proved that he has been in possession of the requisite number of years.” Emphasis added.The term dispossess is defined in Black’s Law Dictionary 10Th Edition as:“To take property or land away from, to oust or evict (someone) from property”.Dispossession is defined in the same Dictionary as:“Deprivation of, or eviction from rightful possession of property, the wrongful taking or withholding of possession of land from the person lawful entitled to it.”In the circumstances of this case, the plaintiff cannot be said to have dispossessed either the defendant nor Joshua Wanjala Opicho Of The Suit Land. His Attempts To Construct A Permanent House Thereon Were Resisted Not Only By The Defendant As The Registered Proprietor As Well As Joshua Wanjala Opicho The Equitable Owner But Also By His Own Mother Rispa Nakhumicha Who, And Rightfully So, Advised The Plaintiff That The Land Did Not Belong To Her And Therefore He Could Not Construct Any Permanent Building On It. Indeed That Is Why He Was Accommodated In His Late Mother's Semi-permanent Structure When He First Moved To The Suit Land In 1980. It Is Also Important To Note That When His Late Mother Rispa Nakhumicha Passed Away In 2005, She Was Only Buried On The Suit Land Out Of The Benevolence Of Joshua Wanjala Opicho And The Intervention Of The Clan. It Was Not Because Rispa Nakhumicha Had Any Right To Any Portion Of The Suit Land. Both Joshua Wanjala Opicho and the clan must be applauded for that kind gesture. The plaintiff, on the other hand behaved like the proverbial camel which started by putting it’s nose in the tent (the mother’s semi-permanent house) and now wants to grab the whole land. This Court must put those antics to an end by dismissing his Originating Summons.

35. Having considered the Originating Summons, the response thereto and all the evidence and submissions, I am not persuaded that the plaintiff has made out a case that he is entitled to a portion of the suit land measuring 9. 5 acres or any part thereof. His claim for adverse possession must be dismissed.

36. But even as I dismiss the plaintiff’s claim to the suit land by way of adverse possession, I have agonized on whether that alone will be sufficient to bring this long-standing dispute over the ownership of the suit land to an end. I am, of course, well aware that the defendant did not file any counter-claim against the plaintiff with respect to the suit land. The law is that in our adversarial system, cases are tried and determined on the basis of the parties pleadings – see Wareham T/a A.f. Wareham & Others -v- Kenya Post Office Savings Bank 2004 2 Klr 91 among other cases.

37. It is not clear why the defendant did not file any counter-claim against the plaintiff. The view I take of this matter, however, is that having found that the plaintiff has no basis upon which to be registered as the proprietor of the suit land on the ground of having acquired it by way of adverse possession, and indeed, on any other ground including a trust, this Court must go further and make orders that will bring the dispute over the ownership of the suit land to some degree of finality. I say so because, merely dismissing the plaintiff’s Originating Summons and leaving him in occupation of the suit land will not have resolved this dispute.

38. In making the orders that I am about to make, I am guided by the decisions in Odd Jobs -v- Mubia 1970 E.a 476 And Also Nkalubo -v- Kibirige 1973 E.A 102 where the Court said that a trial Court may determine an issue that is not covered in the pleadings but which arises from the facts of the evidence by the parties. In Odd Jobs -v- Mubia (supra), the Court held that:“A Court may base it’s decision on any unpleaded issue if it appears from the course followed at the trial that the issue has been left to the Court for decision.”Further, in Nyaga Cottolengo Francis -v- Pius Mwaniki Karani 2017 Eklr, The Court After Citing With Approval The Case Of Odd Jobs -v- Mubia (supra), went on to add as follows:“More recently, the notion that the courts are mere bystanders in adversarial litigation process has been rendered blurry by amendments to the Civil Procedure Act in Sections 1A and 1B as well as the Appellate Jurisdiction Act in Sections 3A and 3B which give the courts considerable latitude to intervene with a view to achieving the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of civil disputes in Kenya. Thus, the courts have a duty and will play their part in the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of the available judicial and administrative resources, the timely disposal of all the proceedings before the Court, at a cost affordable by the respective parties, and with the use of suitable technology. Under Article 159 of the new Constitution (now 7 years old!) the people of Kenya who are the sole repository of Judicial authority have spelt out in peremptory manner how that power will be exercised and the Courts have no option but to comply.”

39. The protagonists in this dispute are the plaintiff, claiming the suit land under adverse possession, and the defendant as the registered proprietor of the suit land. The thread which runs through the evidence is that although the suit land is registered in the name of the defendant, a portion of it which the plaintiff claims by way of adverse possession was infact purchased by Joshua Wanjala Opicho. Evidence Has Been Led On That Issue And The Court Has Found That Indeed Joshua Wanjala Opicho, And Not The Plaintiff, Purchased The Land From The Defendant. Veronica Nafula Joshua (dw3) Wife To Joshua Wanjala Opicho Was Emphatic In Her Testimony That The Land Which The Plaintiff Claim Was Purchased By Her Late Husband. When She Was Re-examined By Mr Anwar counsel for the defendant, she said:QUOTE{startQuote “}The land belongs to Joshua Opicho my late husband.”Similar evidence was adduced by Joseph Wanjala Otoa (dw4) who drafted the sale agreement. In the last paragraph of his statement dated 23rd July 2019, he wrote:“I confirm that Joshua Opicho bought 4 acres from the Respondent herein and I was the one who drafted the agreement.”Everlyne Nakhumicha Wamachekhe (dw1) The Defendant’s Wife Who Substituted Him Was Emphatic In Her Testimony That When The Plaintiff Moved To The Suit Land In 1980, He Was Accommodated By His Mother On Land Belonging To Joshua Wanjala Opicho And On Which He Tried To Put Up A Home. Finally, Eliud Wafula Muyekho (DW5) and who is the Chief of the area has stated in the last paragraph of his statement dated 23rd July 2019 that:“To the best of my knowledge, the Applicant herein has not stayed in the suit land peacefully as the issues touching on land has been outstanding and has never been resolved todate.”This dispute, as is also clear from the evidence, has been ventilated upto the District Officer A Fact That Was Admitted By The Plaintiff When He Was Examined By His Counsel Mr Kundu. Evidence Was Also Adduced By The Chief As To How When He Summoned The Plaintiff In 2008 He Refused To Honour The Summons. And That In 2018 When Joshua Wanjala Opicho’s widow went to complain to him about the plaintiff, he advised them to meet at home. The meeting never took place because the plaintiff threatened to harm anyone who turned up for the meeting.

40. Taking all the above into account, and guided by the decision in Odd Jobs -v- Mubia (supra), I Am Satisfied That Other Than Simply Dismissing The Plaintiff’s Originating Summons, The Parties Herein Also Led Evidence Which Calls Upon This Court To Determine The Underlying Dispute Over The Ownership Of The Suit Land As Between The Plaintiff And Joshua Wanjala Opicho Which The Plaintiff Claims To Have Purchased And Which This Court Has Made A Finding That He Has No Right Over The Same. And Having Made That Finding, This Court Must Respond To The Testimony Of Veronica Nafula Joshua (dw3) Who Said That The Land Belongs To Her Husband Joshua Wanjala Opicho. Having agreed with her, it follows that the plaintiff must give way and the only route is to order his eviction therefrom because failure to do so will mean that the dispute between the plaintiff and VERONICA NAFULA JOSHUA will remain un-resolved yet it has been brought to the fore in these proceedings. Besides, part of the suit land claimed by the plaintiff is registered in the name of the defendant. As per the Certificate of Official Search annexed to the defendant’s supporting affidavit, the whole suit land measuring 6. 6 Hectares (16. 3 acres) is registered in the name of the defendant against whom the orders of adverse possession sought by the plaintiff have been dismissed.

41. With regard to costs, they follow the event. I see no reason to deny the defendant the costs of this suit.

42. Ultimately therefore, and having considered all the evidence herein, this Court makes the following disposal orders: 1. The plaintiff’s suit is dismissed.

2. The plaintiff, his family, agents, servants and all those claiming under him shall within three (3) months of this judgment vacate the land parceL No East Bukusu/south Nalondo/7214 failure to which they will be liable for eviction therefrom.

3. The plaintiff shall meet the defendant’s costs.

BOAZ N. OLAOJUDGE6THJULY 2023JUDGMENT DATED, SIGNED AND DELIVERED AT BUSIA ELC BY WAY OF ELECTRONIC MAIL ON THIS 6THDAY OF JULY 2023 AND WITH NOTICE TO THE PARTIES. RIGHT OF APPEAL.BOAZ N. OLAOJUDGE6THJULY 2023Explanatory Notes:The delay in the delivery of this judgment was occasioned by the fact that the hearing ended shortly before my departure from BUNGOMA to BUSIA on transfer and the parties filed their submissions long after I had reported to my new station where the file was dispatched to. The delay is regretted.BOAZ N. OLAOJUDGE6THJULY 2023