Moses Wanyonyi Wepukhulu v Joshua Kipketer Alapiy [2016] KEELC 912 (KLR)

REPUBLICOF KENYA

IN THE ENVIRONMENT  AND LAND COURT AT KITALE

LAND CASE NO. 145 OF 2014 (O.S)

MOSES WANYONYI WEPUKHULU  …..............PLAINTIFF

VERSUS

JOSHUA KIPKETER ALAPIY ….....................DEFENDANT

J U D G E M E N T

INTRODUCTION

The Defendant is the registered owner of LR No. Kwanza/Namanjalala Block 2/Sarora/247 (Suitland).  The suitland is 2. 064 hactares.  The Plaintiff brought this suit against the Defendant seeking an order of  court that he had acquired 3 ½ acresof that land by way of adverse possession.

The Defendant who was duly served with  summons to enter appearance neither entered appearance nor filed defence.   The hearing therefore proceeded by way of formal proof.

PLAINTIFF'S CASE

The Plaintiff testified that on 16/7/1995 he bought two acres from the Defendant.   The two acres were part of  the suitland.  The Defendant later sold 1. 2 acres to one Hesbon Midikira Ambani.   The Plaintiff and Hesbon Midikira Ambaniwere put in possession of the respective portions which they had bought.

On 2/7/2012, Hesbon Midikira Ambanisold his 1. 2 acres to the Plaintiff.   The Plaintiff  testified that he fenced his portion and put up a posho mill and has since carried out developments on his portion of the land.   The Defendant later sold the remaining portion of the suitland to one Nyamanya.   The Defendant moved out of the suitland.

The Plaintiff has been staying on the suitland peacefully.  The Defendant has however refused to transfer the portion he bought from the Defendant as well as the portion he bought from Hesbon Midikira Ambani into his name.

ANALYSIS OF EVIDENCE, THE LAW AND ISSUES FOR DETERMINATION

The Plaintiff produced an agreement between him and the Defendant[ Exhibit 1].   According to this agreement, the Plaintiff bought two acres and paid Kshs 97,000/= on signing the agreement. He was put in possession immediately. The plaintiff also produced a copy of sale agreement between the Defendant and one Hesbon Midikira  Ambani [Exhibit 2].  This agreement was made on 16/9/1999. The Defendant sold 1. 2 acres to Hesbon Midikira Ambani. The consideration was Kshs 110,000/=.  Hesbon Midikira paid Kshs 92,000/= on signing the agreement. The balance was to be cleared on 24/9/1999.

On 2/7/2012, the Plaintiff bought 1. 2 acres from Hesbon Midikira Ambani.An agreement between him and Ambani was produced as exhibit 3.   The consideration wasKshs 600,000/=. A down payment of kshs 110,000/= was made on 2/7/2012.   The balance ofKshs 490,000/= was cleared on 10/8/2012 as per the acknowledgement produced as exhibit 4.   This meant that the Plaintiff's entitlement in the suitland was 3. 2 acres.

The issue for determination in this case is whether the Plaintiff has acquired 3. 2 acres by way of adverse possession. The Plaintiff was put in possession on 16/7/1995.  Hesbon Mudikira Ambani was put in possession on 16/9/1999. There is evidence that both the Plaintiff and Ambani remained in possession of their respective portions until 2/7/2012 when Ambani sold his 1. 2 acresto the Plaintiff.

Both the Plaintiff and Ambani had been peacefully staying on their respective portions. None of  the two was taken before the Land Control Board for consent. The Defendant is the registered owner of suitland as per the extract of title produced as exhibit 6.   There is no evidence that the Defendant took any steps to interrupt the peaceful and quiet enjoyment of both the Plaintiff and Ambani.

The law regarding adverse possession is that one has to be in open, peaceful and uninterrupted possession of the portion he claims for a period of 12 years. Such possession must be adequate in continuity, in publicity and in extent to show that possession was adverse to the proprietor.  [ see Nakuru Court of Appeal Civil Appeal No. 231 of 1999 between Njuguna Ndatho and Masai Itumo & 2 others 2002 eKLR] .The Plaintiff has been in his portion for 19 years prior  to filing this case. Ambani  had been in possession of 1. 2 acres for over a period of 12 years after which he sold his portion to the Plaintiff.    It is therefore clear that the Defendant has lost title to the 3. 2 acres which the Plaintiff is claiming.

The Defendant  did not take any effective  steps to stop time from running against him. It has been held that  time against the title holder starts running from the time the adverse possessor is put in possession. The Plaintiff and Ambani had been in possession from 1995and 1999 respectively.  As at the time Ambani sold 1. 2 acres to the Plaintiff, the Defendant's interest on the 1. 2 acres had been lost as  was the case with the portion of 2 acres held by the Plaintiff.

The Plaintiff produced photographs showing that he has done substantial developments on his portion of land. The photographs were produced as exhibit 5.

DECISION

I find that the Plaintiff has proved his case to the standards required. The Defendant is holding the 3. 2 acres of the suitland in trust for the Plaintiff. That trust  is hereby terminated and an order is given that the Plaintiff be registered as owner of 3. 2 acresout of the suitland. The Plaintiff shall have costs of this suit to be paid by the Defendant.

Dated, signed and delivered at Kitale on this 20th day of April 2016.

E. OBAGA

JUDGE

In the presence of Mr Ingosi fro Mr Okile for Plaintiff.

Court Assistant – Isabellah

E. OBAGA

JUDGE

20/4/16