Silas Waweru v Erastus Mwai Njoroge & Ngoingwa Company Limited [2021] KEELC 1937 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT

AT THIKA

ELC CASE NO. 303 OF  2018

(FORMERLY  NRB  1270 OF 2004)

SILAS WAWERU.................................................PLAINTIFF

VERSUS

ERASTUS MWAI NJOROGE..................1ST DEFENDANT

NGOINGWA COMPANY LIMITED......2ND DEFENDANT

JUDGMENT

By an Originating Summons dated 23rd November 2004, the Plaintiff herein filed this suit and sought for the determination of the following questions;

1. Whether the Plaintiff should be declared to have become entitled by Adverse Possession of 0. 0720  ha comprised in land title No. Thika Municipality/ Block xx/xxx,  registered under the Registered Land Act  Cap 300, of the Laws of Kenya  and situate in Thika   District.

2. Whether the Plaintiff be registered as the absolute  proprietor of  0. 0720 ha  of land comprised  in the title L.R  Number Thika Municipality/ Block xx/xxx.

3.  Whether the costs of this originating summons should be awarded to the Plaintiff.

In his Supporting Affidavit, the Plaintiff averred that he is a member of the 2nd Defendant. That in the year 1984, he balloted and was allocated Plot No. xxx in the original Company’s landsL.R  No. xxxx and xxxx, which particular parcel was subsequent to a subdivision  named L.R xx/xxx.  That he took possession of the suit property in 1984,and started constructing and cultivating on the said land, and he has  constructed  a permanent residential  structure and he cultivates on the said property. That he has lived on the suit property with his family uninterrupted and with both the Defendants’ Knowledge and he is however not  a licensee  nor is he  under any lease.

Further, that he has cultivated a clear boundary on the suit premises and he is known as the owner of the suit property in the area. That the 1st Defendant has never occupied the premises nor has he demanded that he vacates the suit property, save for his belated action in instituting  Thika CMCC No. 1363  of 2003. That he has had the exclusive  use  and possession of the  suit property  and exercised all tenets of a hostile title against the Defendants . Further that he is informed by his Advocate on record, which information  he believes to be true that he is the owner of the  suit land having purchased the same from  2nd Defendant, and he  has further acquired title by way of Adverse Possession, as against the Defendants, and he is thus entitled to the  enjoyment of the same.

The suit is opposed and the 1st  Defendant  Erastus Mwangi  Njoroge, swore a Replying Affidavit on 21st March 2006,  and averred that he is  the duly registered owner of  the suit property, and he got the same by virtue  of being a shareholder of  Ngoingwa  Company Limited. That  initially the plot was described and known as 964.  That  he had  registered a dispute with Ngoingwa Company  Limited, who ruled that he is the  actual owner of the suit property and that  the Plaintiff is the owner of   Plot No. xxx and his is No. xxx. That he lodged a dispute with Ngoingwa Company Limited, who lodged a complaint with the District Officer Thika, who ruled that Plot xxx, belonged to the Plaintiff and 1st Defendant was Plot No. xxx. That he filed suit No. 1363 of  2003, at Thika  which was pending before Court  and the Plaintiff intends to delay his suit.

That the Plaintiff started interfering with his property in 2001, and  has not been in possession. That the receipts produced by the  Plaintiff only confirm payments made to Ngoingwa Company Limited, and cannot be proof for ownership of  Plot No. xxx. That to date, he has  paid rates. That the Plaintiff only put up his structure in 2001,  and cannot therefore legally gain entitlement to the suit property  by Adverse possession.

The 2nd Defendant filed its Relying Affidavit on 27th April 2006,sworn by  Damaris Njoki Kamamu its Secretary   who averred that the Plaintiff and the 1st  Defendant are  shareholders of the Company. That they both did ballot  for the  plots  sometimes about 1984. That the Company procedure is once a shareholder cast a ballot, he or she  must surrender the ballot paper to the officials of the Company for recording  and subsequent issuance of title document. That the 1st Defendant did submit ballot for 964, which the Company duly recorded and  subsequently caused Certificate of lease to be issued in his favour.  That after the ballot, the Plaintiff started claiming ownership of the  1st Defendant’s plot and encroached  on to the same and the 1st Defendant lodged a complaint with the Company. Further, that the Company discussed the matter and the Plaintiff was allocated Plot No. xxx.to resolve the dispute but he thanked the Company for allocating him another plot which was not the case.

That the Company reported the matter to Thika District Officer,  who advised the Plaintiff to vacate the suit property . That it is not true that the Plaintiff was allotted Plot xxx,nor  has he been cultivating the suit property since 1984,and neither did he ever construct any building until 2001.

In  CMCC 1363 of 2003, by a Further  Amended Plaint dated 7th March 2006, the 1st Defendant filed a suit against the Plaintiff,  and the 2nd Defendant  and sought for orders that;

a. An injunction to restrain the 1st defendant , its servants  and or agents  from interfering, trespassing  selling or otherwise  parcel No. L.R  No. Thika Municipality/ Block xx/xx.

b.  A Declaration  that the parcel  of land known as   L.R No. Thika  Municipality Block  xx/xxx  solely belongs to the Plaintiff

c.  In the alternative  to prayer (a) &(b)  above the 2nd  Defendant  to allocate  the Plaintiff another similar piece of land  for the same measurements and value.

d.  The 1st Defendant  be ordered to  give vacant possession  of land parcel No. L.R  No. Thika  Municipality Block  20/365  and or be evicted therefrom

e.  Costs of this suit

f.  Any other  relief  as this Honourable  Court may deem fit.

In his statement of Claim the  1st Defendant averred that he is the registered owner of  the suit property. That the Plaintiff had illegally  occupied the suit property and started excavating a foundation with the intention of  erecting a permanent structure,  the same being done with the Knowledge of the 2nd Defendant, who had caused double allocation  of the suit property to both parties. That the Plaintiff’s action could not be justified in law.

The suit was contested and the Plaintiff filed  his statement of Defence  and Counter Claim dated 3rd November 2003. That he has always been in possession of the suit property and the  1st Defendant’s interest was acquired fraudulently.  Further, that the acts of excavation of foundation and erection of permanent structure had already taken  place prior to the institution of the suit. That he has acquired prescriptive rights  to the suit property and claims Adverse Possession,

In his Counter Claim , he averred that  his occupation of the suit property  since1984, has been uninterrupted and his development, Occupation and possession has been with the 1st Defendant’s knowledge.

The matter proceeded by way of viva voce evidence wherein the  Plaintiff  called 3 witnesses and the Defendants called  witnesses.

PLAINTIFF’S CASE

PW1  Silas Waweru  Muturi  adopted his  Affidavit dated  23rd November  2004. He testified that the 2nd Defendant was the owner  of L.R Block xx/xxx. That he is member No. xxx and his ballot No. is 964. Further that he was member No. xxx  and he was given the same by the Surveyor.  He produced the  survey and ballot receipts  dated 5th February 1984,  as exhibit 1a and 1b. That after balloting, he was  shown where the land was, and he has built his house  on the said land as he did not have any other home.. He produced the photos of the house as  exhibit 2 . Further that he started living there in 1984, and  has been living there since then with his children.

That though he was employed in a school by Ngoingwa  Company Limited and used to live there, he moved to his land  in1984. That  no one has ever tried to remove him from the suit property,  but in the year 2000, he was summoned by the  D.O as the 2nd Defendant had indicated that he had been given Plot No. xxx,  and they wanted him to  vacate plot No. xxx. That Plot  No. xxx, was given the  numbers L.R  Block xx/xxx . That he used to cultivate  plot No. xxx, until he found  his fence removed,  and the banana plants were uprooted. Further that he received summons in respect of a case filed in Thika,  in which he required him to vacate Plot  No. xxx in 2003. He produced the Plaint as Exhibit 3. That he has never vacated the suit property, but that someone built  a house  on Plot  No. xxx. That they uprooted his maize, banana  plants and fence.

That he was a shareholder of Ngoingwa Company Limitedand,  that he  got ballot No. xxx, and kept his  ballot in the house  to await the title deed. That no one told him to register  the land  now  known as   Block xx/xxx. That he was not told that  the title document  came out in the  name of the 1st Defendant. That he was not aware of the requirements to register his ballot  card and that the D.O did not make any decision that he takes  Plot No. xxx. That he wrote to the Company seeking for   his title deed. It was  his further evidence that  one person got more than one  Plot. That he paid all the monies and he has no debt. That they did the balloting in  1984,and he was not served with Court  Summons  in 2003,  when he commenced  construction on plot No.964.

That the 1st Defendant’s title  was issued after his. That after balloting, they were shown by the Surveyor where to build  and he built immediately.

PW2  Lucia Nyokabi testified that  she was a member  ofNgoingwa  Company Ltdsince 1984,and Plaintiff has a  Plot No. xxx. That they have been neighbours since then and the Plaintiff has been  living on the suit property since1984. That she heard about the dispute over the suit land when the Plaintiffs fence was demolished. That when she picked her ballot card, she registered it and she was issued with a title deed. That when the Plaintiff took his ballot, he put it in his pocket and did not register it That she had 3 plots and  the Plaintiff  was  given 3 plots.

PW3  Peter Maina Waweru  testified that the Plaintiff is his father. That he was born in 1967 and that he lives on the suit property with his father and that  they have built thereon. That  in the year 2000, his father  was summoned by the District Officer  and he was told that he had been allocated  Plot No. xxx. That they fenced Plot No.xxx and cultivated and planted bananas. Further, that in 2003, his father was issued with Summons.  That they did not know the 1st Defendant nor did  he go to the suit property.

That he was present when his father balloted. That  people would queue and  pick a ballot  then have it registered. That his father was a member of Ngoingwa Company Limited.That someone built a house on plot xxxin the year 2009,and the suit was filed in2004. That in 1984, he was seventeen years and  they have loved on the suit property.

DEFENCE CASE

DW1  Damaris Njoki Kamamu testified that she is the Secretary of  Ngoingwa Company Limited. She adopted her witness statement dated  13th July 2011.  She produced the   bundle of documents  as Exhibit 1 & 2. That  they did the balloting along time  but they did not do it at the same time. That she could not  recall the parcel  of land for each of the parties. That plot No. xxx, was given to Silas  and that they also gave it to  Erastus by mistake. That they gave  Silas the plot  in 2011.

DW2  Erastus Mwangi Njoroge adopted his  witness statement dated 18th July 2011,and  produced his list of documents as  Exhibits  1, 2 & 3in Court.   He further adopted the bundle  of documents as  his Exhibits.

That as per his witness statement, he started visiting his Plot in the year2000. That he used to live in Mary Hill High Schooland the plot was not occupied and he could see structures coming up. That he went to Ngoingwa  Company Limited and he was told that there was a mistake of double allocation  and they had plans of allocating the other person  a different plot. That the Company had the responsibility of allocating the plots. Further that in 1996, he was attacked by thugs  at the plot and he sent an emissary  to the Mayor of Thika. That he realized that there was a structure in 2000and in 2004 there was balloting.

Further that he wanted to develop the plot, in  the year 2004and that is when he realized there was a  development. That he used to pass by the Plot while going to Mary Hill School and there was no one using the plot.

Thereafter, the  Plaintiff filed written submissions which the Court has carefully read and considered. Despite being given a chance to file their written submissions, the  Defendants failed to do so. The Court has also read and considered the pleadings by the parties, the evidence adduced and the relevant provisions of law and renders  itself as follows;

It is not in doubt that both the Plaintiff and the 1st Defendant lay claim to the suit property. It is further not in doubt that  both the Plaintiff and the 1st  Defendant are shareholders and members of the 2nd Defendant and they  both balloted for the Plots.  The Plaintiff alleges to have balloted  for Plot No. xxx in 1984,and took possession of the said suit property  and has been living in the said property ever since. He  has therefore sought  to be declared as the owner, having acquired prescriptive rights over the said property and sought an order to be  declared as having acquired the suit property by way of Adverse Possession. The Court must therefore determine whether the Plaintiff has  proved the claim of Adverse Possession.

In deciding whether or not to grant the orders of Adverse possession, the Court is guided by Section 7 of the Limitation of Actions Act which provides;

‘An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

Further the Court is guided bySection 38 (1) and (2) Limitation of the Actions Act that provides as follows:

(1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited insection 37of 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.

(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.

In determining whether or not to declare that a party has acquired land by adverse possession, there are certain principles which the person  claiming such rights must meet, as quoted by Justice Sergon in the case of Gerald Muriithi …Vs… Wamugunda Muriuki & Another (2010) eKLR while referring to the case of Wambugu …Vs…Njuguna (1983) KLR page 172 the where the Court of Appeal held as follows;

‘’1. In order to acquire by statute of limitations title to land which has a known owner the owner must have lost his right to the land either by being dispossessed of it or by having continued 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 for which he intended to use it. The respondent could and did not prove that the appellant had either been dispossessed of the suit land for a continuous period of twelve years as to entitle him, the respondent to title to the land by adverse possession.

2. The limitation of Actions Act, on adverse possession contemplates two concepts: dispossession and discontinuance of possession. 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 the claimant has proved that he has been in possession for the requisite number of years.

For the Plaintiff herein  to succeed on a claim of adverse possession,he must be able to prove dispossession, discontinuance of possession for a continuous period of 12 years, and further that the dispossession occurred and the Defendants had knowledge of such dispossession.

The Plaintiff has averred that   he has been in continuous possession of the suit property for a period of over 12 years. The Plaintiff testified that he balloted for the suit property in 1984,and took possession of  the same and  has been in quiet and exclusive possession over the suit property.  Further, PW2  also  testified that  she has been the Plaintiff’s neighbor since 1984,  and that the Plaintiff has lived on the suit property since that time and has been cultivating the same. Though the 1st Defendant has alleged that the Plaintiff  sought to occupy and build on the suit property in  the year2000, the Court concurs with the Plaintiff’s submissions that indeed  there are correspondences that  show or prove that he was in the suit property prior to the year 2001. This coupled with the  fact that  in his witness statement DW 1 acknowledged that the  2nd Defendant   found out that there were two   ballot cards in respect of the same suit property, the Court is satisfied that  indeed the Plaintiff has been in occupation of the suit property  for a continuous period of over 12 years.

Be it  as it may, the Plaintiff is also required to prove that he has been in occupation of the said suit property with the knowledge of the title holder.

Has the Plaintiff therefore proved this?

The  Court answers this  question in the negative and this is so as the 1st Defendant   became the title  holder vide a Lease agreement  dated 10th August 1999. The instant suit was filed  in 2004. Even if he knew of the Plaintiff’s  occupation, he had not been a title holder for  a period of 12 years and therefore the Limitation of time cannot have run   against his title. On the other hand, the 1st Defendant  had been the title holder since 1999.  DW1  gave evidence that after a party had picked a ballot, the party was then required to register the same with the Company. That the Plaintiff failed to register the Plaintiff’s ballot and the Defendants only became aware of the existence of his ballot when the instant dispute arose The Court is thus not satisfied that the  Plaintiff was in the suit property with the Knowledge  of the 1st Defendant who was the title holder.

If the 1st Defendant was not aware of the Plaintiff’s occupation and possession.  Limitation of time could therefore not run as against the Defendants. In the circumstances, the Court finds and holds that the Plaintiff has not proved his claim to be entitled to a Claim of Adverse Possession and therefore the same is not merited

However, the Court is still mandated to make  determination of  who is the lawful  owner of the suit property as there are two suits involved. Both parties have laid claim to the  suit property  and that is not in doubt. In his statement of Claim, the 1st  Defendant  averred that the 2nd Defendant  carried out double allocation, actions which  brought forth  the  dispute. It is not in doubt that both parties are members and shareholders of the  2nd Defendant.

Further both parties produced in evidence  a ballot card that indicates that they balloted for Plot No. xxx. The only issues then became that though the parties  were required to register their ballots, the Plaintiff failed to register his ballot. In her witness statement dated 13th July 2011, DW1 who is the representative of the  2nd Defendant stated as follows:-

“During  the hearing in our offices the plaintiff  produced a ballot  paper and  for plot No. 964 and the 1st  Defendant produced  one for the same  Plot 964. It is at this time we discovered  we had two ballot  papers for  the same plot, but on checking  our register we found  only 1st Defendant  had registered  his ballot and lease  had already been processed in the same.”

It is thus quite clear that  the  two parties both hold valid ballot card and the Plaintiff’s ballot  card is genuine and his only shortcoming being that he did not register the same.  The Court therefore finds that  both the Plaintiff  and the 1st Defendant are lawful owners of the  suit property. However it is quite clear that the two cannot exist in the same space as both cannot have the same title to the  said land  as each must get his own.

Equity dictates that the first in time must prevail.  DW1  testified that the  procedure is that once a person  ballots for his or her parcel of land, then the  party must register their ballot card. The Plaintiff failed to do thus. The 1st Defendant however registered his ballot and he was issued with a Lease and subsequently title deed over the said  parcel of land and naturally he ought to be the one to  get the land  as he was able to follow the procedure  as laid out and has the title document. However, this is a Court of Justice and the Court recognizes that the Plaintiff has been on the suit property since 1984,and his family and himself have built on the suit property and  therefore to move him  would not be in the interest of justice.

The Court  notes this as it acknowledges that the 1st Defendant in his  Defence  has also sought for a prayer to be given an alternative land, and which land should  be of the same in value  as the suit property. Therefore, the 1st Defendant is amenable to be give  alternative parcel  of land  and Justice would best be observed if the Court could order that the 1st Defendant be given an alternative land.

In the circumstances the Court finds that  it would only be best if the Plaintiff  who has been in actual and physical possession of the suit property is allowed  to remain on the suit property as  he has the same rights as the 1st  Defendant over the said property, only that the 1st Defendant being the first in time naturally would have prevailed.

Having analysed the evidence as above, the Court finds and holds that the Originating Summons dated 23rd November  2004,  by the Plaintiff is notmerited. Further, the Court finds and holds that both parties are lawful owners of the suit property, but in the interest of justice makes the following orders;

1. The  Plaintiff will retain ownership and possession of  land parcel No. L.R  No. Thika  Municipality Block  xx/xxx.

2. The 1st Defendant’s title  in respect of  the land parcel No. L.R  No. Thika  Municipality Block  xx/xxx  be and is hereby cancelled and the same to be registered in the name of the Plaintiff.

3. The Plaintiff to relinquish any interest that he has over Plot 688.

4. The 2nd Defendant be and is hereby ordered to allocate the 1st Defendant another similar parcel of land of the same measurements and value to the suit property.

5. Each party to bear its own costs of the suit.

It is so ordered.

DATED, SIGNEDAND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy