Robert Ouma Oduori v Thomas Muka Maulo, Walter Washington & Barasa Nyongesa [2015] KEELC 405 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 154 OF 2013 (FORMERLY HCC. 23 OF 2011)

ROBERT  OUMA ODUORI…………APPLICANT/PLAINTIFF

-VERSUS-

THOMAS  MUKA MAULO…1ST RESPONDENT/DEFENDANT

WALTER  WASHINGTON

BARASA NYONGESA……..2ND  RESPONDENT/DEFENDANT

J U D G M E N T.

1.  BACKGROUND.

ROBERT OUMA ODUORI,hereinafter  referred to as the Plaintiff,  commenced this case through  the originating summons dated 25th November, 2011  claiming land parcel Bukhayo/Matayos/3116 on the basis  of being an adverse possessor for having lived on it for 40 years.  He had  named Thomas Muka Maulo as the Defendant.

The Plaintiff then  filed the amended  originating  summons dated 16th January, 2012  adding a second  Defendant.  The Plaintiff’s  claim under the amended originating  summons is against Thomas Muka Maulo and Walter Washington Barasa Nyongesa  hereinafter  referred to  as the 1st and 2nd Defendant respectively.

The 1st Defendant  filed his replying affidavit sworn on 3rd January, 2012  while 2nd Defendant  filed his replying affidavit sworn  on 23rd February, 2012.

The parties counsel appeared before the court on 29th January, 2013 and recorded a consent  that the matter be heard through viva voce evidence.

The Plaintiff filed the following  documents;

Witness statement of the Plaintiff dated  27th February, 2012,

Witness  statement of Philip  Juma Kasala dated 27th February, 2012,

Witness statement of Philip Wandera  Okongo,

List of documents  dated 12th October, 2012,

Amended list of documents dated 28th July, 2013.

Plaintiff’s  supporting  affidavits  sworn on 25th November, 2011 and 16th January, 2012.

Plaintiff’s replying affidavit  in response  to further  affidavit  sworn on 26th June, 2013.

The Defendants filed  the following  documents;

Witness statement of the 2nd Defendant dated 23rd  February, 2012.

Witness  statement  of the 1st Defendant  dated 3rd January, 2012.

The 2nd Defendant’s further  affidavit  sworn on 17th June, 2013.

Witness statement  of Victor Oduor Ngwabe which  is undated but date stamped 28th January, 2013.

The evidence affidavit of Victor  Oduor  Ngwabe  sworn on 13th February, 2013.

Defendant  list  of documents dated 3rd January, 2013.

2nd Defendant  further list of documents dated 10th February, 2014.

2. During  the hearing, the Plaintiff  testified  as PW 1  and called Philip  Wandera   Okongo  and Philip Juma Kasala who testified as PW 2 and PW 3  respectively. The    Plaintiff  then closed his case and a date  was fixed for defence hearing.  However, when  the matter came  up for defence  hearing on 8th October, 2013,  the parties counsel entered a consent to reopen the Plaintiff’s  suit to allow a visit on the suit land by the court. The visit was made on 23rd October, 2014 and   the record contains     the court’s observations.  PW 1  was then  recalled to the witness box by his counsel and after  being  cross-     examined by  the Defendant’s  counsel, the Plaintiff closed     his     case.

3.  The Defendants called Victor Oduor  Ngwabe as a witness and he testified  as DW  1.  Thereafter the 2nd Defendant  testified  as DW 2 on behalf  of himself and his father, the 1st Defendant, who had given him a power  of  Attorney  dated 13th   February, 2013 in respect of  this case. The Defendants then closed their case.

4.  Upon completion of the oral evidence, the parties counsel undertook  to file written   submissions. The Plaintiff’s counsel filed his dated  25th  February, 2015  on the 26th February, 2015. The Defendants’  counsel  filed their submission dated  4th March,   2015 on the 17th  March, 2015.

ISSUES FOR DETERMINATION.

Whether the Plaintiff has been in exclusive , peaceful, open and uninterrupted occupation  and possession of the suit land for over 12 years.

Whether the Plaintiff’s  occupation and possession  of the suit land was as a lisencee and if so when the lisencee  was terminated.

Whether  the Plaintiff has  acquired rights  of an adverse possessor over  the suit  land and if so whether the Defendants rights over  the suit land  have been extinguished.

Whether  the Plaintiff should  be registered  as the proprietor  of the suit land by virtue of section 7  of the Limitation  of Actions Act Chapter 22  of Laws of Kenya.

5.  ANALYSIS OF THE EVIDENCE.

That from the parties evidence and copies of the land registers attached to the affidavits  filed herein, the suit land is a subdivision from Bukhayo/Matayos/2451 which was itself a subdivision from Bukhayo/Matayos/943. The  register for Bukhayo/Matayos/943 was closed  on 16th August, 1996 upon being subdivided  into parcels 2431 and 2432.

That the  evidence  adduced by the parties shows clearly that the first registered proprietor of Bukhayo/Matayos/943 was Thomas Muka, the 1st Defendant herein.

That 1st Defendant is the  elder brother to the Plaintiff and father to the 2nd Defendant herein.  The parties therefore know each other very well due to their close relationship.

That the Plaintiff’s evidence shows that he took possession of the portion of land that later came to be registered as Bukahyo/Matayos/3116 in 1970  with the permission  of the 1st Defendant. The Plaintiff evidence was that he has used that portion exclusively with his family members and his mother.  The Defendants disputes  the Plaintiff’s claim saying that he took possession  of the suit land without the 1st Defendants  permission or knowledge and contend that when 1st Defendant  returned  from Uganda  in 1975, he asked  the Plaintiff to vacate from the suit land but he did not do so.  The Defendants therefore took  the Plaintiff as a person squatting or illegally occupying  the suit land.  The  rival testimonies of the parties on how and when the Plaintiff took possession of the suit land points to the following  two scenarios.

That the Plaintiff took possession of the suit land in 1970. This has not been rebutted by the  Defendants.  The Plaintiff’s  contention that the 1st Defendant  allowed him to take possession however has been disputed by the Defendants.

That whether  or not the Plaintiff took  possession of the suit land with the 1st Defendant’s  permission, that permission was terminated  by the 1st Defendant upon his return from  Uganda in 1975.

The Plaintiff was therefore a lisencee of the 1st Defendant  for the   period of 1970  to 1975 when the presumed lisence or authority was  terminated. The period of 1970 to 1975  cannot be  counted when computing the period if any, that the plaintiff has been in adverse  possession of the suit land.

e)     That  the  available evidence shows that the Plaintiff continued  occupying  a designated portion of  the suit land that was after  the two subdivision exercises involving Bukhayo/Matayos/943   and 2431 registered as Bukhayo/Matayos/3116. The Plaintiff    produced copies of application for consent of Land Control Board and transfer for land for Bukhayo/Matayos/3116 both  dated 20th January, 2003 duly signed by the 1st  Defendant  in his favour. Though the Defendants  did not rebut these  documents, the  court notes that the letter of consent  was   not exhibited  and the court cannot tell whether  it was ever issued. The  court was also not told why the transfer form was   not presented to the Land Registrar for registration.  The  application  for consent  and transfer forms  though  duly signed by the 1st Defendant  were not  lodged with the appropriate  offices for action and are of no value  in a claim  based on adverse possession.  Those documents can only be taken  to have been done on the 1st Defendant‘s  acceptance that  the Plaintiff  had acquired  proprietory rights over the  suit land due to the period of over 12 years that he had been  in possession.

f)  That evidence  availed  by the Plaintiff and  the court’s  observation on visiting  the suit land confirms that contrary to    the Defendants claim that the Plaintiff  is only occupying a  small portion of the suit land, the  Plaintiff and his family are in actual and exclusive possession of the whole suit land Bukhayo/Matayos/3116.   The suit land was during the visit      found to be clearly  marked with mature live fence.  The   Plaintiff has  eleven houses,  plants,  fruit trees and food crops on the suit land. The Plaintiff evidence is that he has been in  exclusive possession since 1970. This  shows  that from 1975,   when 1st Defendant  terminated the permission he had given  him,  to 25th November, 2011 when the originating summons  was filed, the  Plaintiff had  been in occupation and possession of the suit land for  about 36 years.  If  the court was to count  the period from 1975 to the year 2003 when the  Plaintiff and 1st Defendant signed the application for consent and  transfer forms, a period of about 28 years had lapsed.  In  law the Plaintiff had become an adverse possessor of the suit land  at the expiry  of 12 years from  1975 which  was in  1987. The Defendants specifically, the 1st Defendant  right to recover the suit land lapsed on or about 1987 and by the    time he transferred the suit land to the 2nd Defendant on 21st December, 2011,  it was  subject to the Plaintiff’s right of  adverse  possessor. [see Kairu –vs- Gacheru        (1988) 2     KAR 111]

g)      That the Plaintiff claim is that of an adverse possessor of the suit land and does not affect his beneficial interest on his father’s properties.

6.  FINDINGS.

That the Plaintiff’s occupation of the suit land, then forming a part of Bukhayo/Matayos/943, between 1970 to 1975, was under lisence from the 1st Defendant.  During that period, the Plaintiff did not disposses  the 1st Defendant and his possession was not adverse.

That upon  the Plaintiff declining to give vacant possession of the suit land in 1975 as required of him by the 1st Defendant, his continued occupation  and possession of the suit land became adverse to the title of the 1st Defendant,  who was  the registered  proprietor, at the  expiry of 12 years.

That by 1987, the Plaintiff  had been in occupation and possession of the suit land for over 12 years and acquired rights  of an adverse possessor  of the land.  That the  1st Defendant  lost the right to recover  that portion of the land by the application of section 7 of  the Limitation of Action Act Chapter 22 of Laws of Kenya.  [see Wiiliam Gatuhi Murathe –vs- Gakuru Gathimbi (1998)eKLR]

That when parcel Bukhayo/Matayos/2431, subdivided from parcel Bukhayo/Matayos/943, was itself subdivided, it curved out the portion the Plaintiff had been occupying since 1975 and was registered as Bukhayo/Matayos/3116.  This is the land subject matter of the Plaintiff’s claim.

That the 1st Defendant remained as the registered proprietor of Bukhayo/Matayos/3116 subject to the Plaintiffs rights of an adverse possessor of that land with effect from 1987.

That  by the time the 1st Defendant  transferred  the suit land to the 2nd Defendant  on 21st  December, 2011, which  was about a month after the originating summons dated 25th November, 2011 was filed, the  2nd Defendant  acquired the title  to the suit land also  subject to the Plaintiff’s rights of an adverse possessor.

That the  Plaintiff has established his  claim of an adverse possessor  over the suit land and the  2nd Defendant’s title to the said land is hereby declared  extinguished under section 7 of the Limitations of Action Act,  Chapter  22 of the Laws of Kenya.

That the Plaintiff  should be registered  as the proprietor of  the suit land Bukhayo/Matayos/3116 forthwith.

That the  2nd  Defendant  is hereby  ordered to sign all the documents necessary to transfer the suit land, Bukhayo/Matayos/3116, to the Plaintiff and in default the Deputy Registrar  of this court to sign all such necessary documents to give effect to (h) above.

That the Defendants  to pay the Plaintiff’s costs of this suit.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON ……18TH ………DAY OF JUNE,   2015

IN THE PRESENCE OF;

PLAINTIFF/APPLICANT………PRESENT…………………………………

1STDEFENDANT/RESPONDENT……ABSENT……………………………

2ND DEFENDANT/RESPONDENT… PRESENT…………………………..

COUNSEL…MR. MANWARI AND OMOLO FOR PLAINTIFF AND DEFENDANTS RESPECTIVELY.

JUDGE.