Kweyu v Omuto (Civil Appeal 8 of 1990) [1990] KECA 63 (KLR)

3. That the applicant has continued to be in adverse possession of the said portion of land since 1973 a period of 13 years and is entitled to be registered as proprietor of the 6 acres as he has stayed therein undisturbed. 4. That even if the said land is currently registered in the name of the respondent, there is suficient evidence that he is not in occupation of the 6 acres. 5. That the costs of this originating summons be awarded to the applicant. 6. That any other order be made as this honourable court may deem fit and reasonable to grant.” Section 38(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya, the Act, is in the following terms: “ 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, or land comprised in a lease registered under any of these 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. The Acts cited in section 37 of the Act are; the Government Lands Act, the Registration of Titles Act, the Land Titles Act, and the Registered Land Act: 3. The suit land was part of a piece of land registered under the Registered Land Act, Cap 300 of the Laws of Kenya. From the contents of the originating summons as are set out above, the appellant was claiming to be entitled by adverse possession to the suit land. No reference to section 38 of the Act was made in the said summons. However, the appellant’s claim to the suit land was clearly pursuant to the provisions of this section. 4. Accordingly, the supporting afidavit to the summons required to be annexed thereto a certified extract of the title to the piece of land out of which the suit land was claimed - see Order XXXVI rule 3D subrules (1) and (2) of the Rules supra. 5. In his supporting afidavit to the originating summons, the appellant deponed as follows:1. That I am the plaintifi/applicant in this case and therefore entitled to make this afidavit. 2. That the respondent is registered as the proprietor of land parcel No E Wanga/Isongo/1512 measuring 9 acres. 3. That in 1973 the respondent agreed to sell me 6 acres out of the said parcel of land at a consideration of K.Shs. 3,000/- which sum was paid to the respondent in full. 4. That I took possession and occupied the said portion of land in 1973 and have been in quiet and undisturbed adverse possession of the said portion of land for a period of over 13 years. 5. That I am therefore entitled to be registered as the proprietor of the said land by reason of adverse possession. 6. That the respondent held title to the said portion of land in trust for me and I am entitled to a declaration to this efiect. 7. That I have carried out developments on the said land. 8. That the said parcel of land is situated in E Wanga location within the jurisdiction of this Honourable Court. https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 2

page 2 of 8

6. 9. That I pray this honourable Court for orders as stated in paragraphs 5 and 6. 10. That the facts herein deposed to are true to the best of my knowledge, information and belief.” The appellant’s entire afidavit makes no reference to a certified extract of title to land parcel No E Wanga/Isongo/ 1512 out of which the suit land is claimed. None appears to have been annexed thereto. Procedurally therefore, the appellant’s originating summons was from the outset defective. The record of proceedings in the superior court does not indicate In his responding afidavit sworn on 5th June, 1987, Kweyu Omuto, the respondent, deponed as follows:11. That I am the respondent/defendant herein hence I am duly competent to swear this afidavit. 2. That I am the sole registered owner of land parcel known as No E Wanga/Isongo/1512 measuring nine (9) acres. 3. That I have never been into agreement of sale of my portion of my said parcel of land with applicant at all. 4. That we have been having problems with the plaintifi over his occupancy of the said portion of six (6) acres of my said parcel of land. 5. That the plaintifi/applicant unlawfully and without colour or right entered the said portion of my parcel of land illegally. 6. That the dispute over the said portion has been going on for a long time and we have attended panel of elders on numerous occasions. 7. That I swear this afidavit in reply to the applicant’s afidavit supporting his originating summons and reply that the applicant herein has no locus standi to have himself registered in my land by way of adverse possession as prayed in his originating summons. 8. That in reply thereto I pray to this Honourable Court to dismiss the said originating summons on the grounds that the same is defective, vexatious or otherwise an abuse of the process of this Honourable Court.” 7. At the hearing of the appellant’s application, his case was that in 1973 he purchased the suit land from the respondent. He took possession of the same and had up to the date of filing the originating summons been in continuous and peaceful occupation of the same. This was for a period in excess of 13 years. To him therefore, he was entitled to it by adverse possession. 8. The respondent denied having sold any piece of land to the appellant. He also denied having had any agreement in that regard with the appellant. His entire viva voce evidence in the court below was as follows:-” I live at Isongo East Wanga Location. I know the plaintifi. I have never sold any piece of land to the plaintifi. My father died before the land was subdivided. I have vertificate to show that the land has not been sub-divided. I wish to produce this in evidence - D Exhibit 1. I have no agreement with the plaintifi for sale of land. That is all. The plaintifi has sued a wrong person.” 9. When cross-examined by the appellant in the superior court he said: “I know you when you illegally occupied my land in 1973. From 1973 we have had disputes with you. I did not allow you to stay on the land and we have been to the Assistant Chief.” https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 3

page 3 of 8

10. The evidence of his two witnesses in the lower court indicated that the suit land was in 1973 sold by his elder brother - Juma Ambani Omuto -now deceased, to the father of the appellant. According to these witnesses, the appellant and the respondent were not the right parties to the action relating to the suit land. The litigation should have been between the appellant’s father and the respondent’s elder brother. 11. In his judgment, the trial judge, Mbogholi-Msagha, J, had this to say: “From the evidence adduced by both parties it is clear that the agreement if any for the sale of land was between the plaintifis father and the late elder brother of the defendant. Both the plaintifi and the defendant were not parties to that agreement and it is not clear in what capacity the plaintifi came to court or why he sued the defendant.” He then proceeded: “ I note that the plaintifi is unrepresented and that he may have an interest in the piece of land which would appear not to have been sub-divided. However, the evidence he has adduced in support of his claim falls short of the required standard to warrant the grant of the orders sought.” The trial judge then concluded: “ In my judgment therefore, I find the plaintifi has failed to prove his case on a balance of probabilities against the defendant.” Accordingly, the trial judge dismissed the appellant’s suit with costs. 12. Against that dismissal, the appellant appeals to this court and has put forward seven grounds of appeal. His chief complaints in these grounds are that the trial judge was wrong both in law and fact in dismissing his suit on the face of adequate evidence that he was in adverse possession of the suit land for a period of over 12 years and that for all that period, the respondent had full knowledge that he had purchased this land and had never questioned his possession and occupation of the same. Indeed, at the hearing of this appeal he contended that the trial judge did not consider the duration he (appellant) had been in occupation of the suit land nor did he consider his having purchased this land. According to him, the respondent had not disputed his stay on this land until be brought the action in respect thereof in the superior court. 13. The respondent’s answer to the appellant’s contention was that the latter’s claim was untrue. According to him, he did not enter into a sale agreement with the appellant nor did he sell the suit land to him. This was consistent with his evidence-in-chief in the superior court. However, when crossexamined by the appellant in that court, he admitted that the appellant occupied the suit land in 1973. He had not allowed him to do so and since occupation, the two have had disputes over it. 14. In regard to the appellant’s complaint that the trial judge did not consider that he had purchased the suit land, from what I have set out above, the trial judge did address himself to the sale agreement in respect of this land and held that if such agreement existed, it was between the appellant’s father and the respondent’s elder brother. To the trial judge, the appellant and the respondent were not parties to any such sale agreement. Indeed, in this connection, he did not find it clear in what capacity the appellant had come to court nor why he had sued the respondent. These conclusions cannot be faulted in view of the materials placed before the trial judge in relation to the appellant’s claim that he had purchased the suit land from the respondent. 15. As concerns the appellant’s complaint that he had placed adequate materials before the trial judge which indicated that he had been in adverse possession of the suit land for a period in excess of 12 https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 4

page 4 of 8

years and was therefore entitled to the same, the trial judge’s observation as is set out 35 above was that the appellant who was unrepresented may have had an interest in a piece of land which appeared not to have been subdivided. He then proceeded to conclude in this regard that the evidence adduced in support of the appellant’s claim fell short of the required standard to warrant the granting of the orders the appellant sought. 16. Between the appellant and the respondent, the former was not from 1973 a purchaser in possession of the suit land quietly picking up the years which are necessary to elapse before the Act barred the latter’s title in r thereof since as was correctly held by the trial judge, the two were not parties to the sale agreement relating to this land. Indeed, the evidence of the respondent in the superior court as is set out above, indicate that the appellant’s occupation of the suit land was without his permission. 17. In deciding the issue of adverse possession, the primary function of a court is to draw legal inferences from proved facts. Such inferences are clearly matters of law. Thus, whereas possession is matter of fact, the question whether that possession is adverse or not is matter of legal conclusion to be drawn from the findings on facts - see K J Rustomji on the Law of Limitation and Adverse Possession, volume II, 5th Edition at pages 1374 and 1375. At pages 1366 and 1367 this author has the following to say: “ By adverse possession is meant a possession which is hostile, under a claim or colour of title, actual, open, uninterrupted, notorious, exclusive and continuous. When such possession is continued for the requisite period (12 years), it confers an indefeasible title upon the possessor. (Colour of title is that which is a title in appearance, but not in reality). Adverse possession is made out by the co-existence of two distinct ingredients; the first, such a title as will afiord colour; and, second, such possession under it as will be adverse to the right of the true owner. The adverse character of the possession must be proved as a fact; it cannot be assumed as a matter of law from mere exclusive possession, however long continued. And the proof must be clear that the party held under a claim of right and with intent to hold adversely. These terms (“claim or colour of title”) mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others irrespective of any semblance or shadow of actual title or right. A mere adverse claim to the land for the period required to form the bar is not suficient. In other words, adverse possession must rest on de facto use and occupation. To make a possession adverse, there must be an entry under a colour of right claiming title hostile to the true owner and the world, and the entry must be followed by the possession and appropriation of the premises to the occupant’s use, done publicly 18. That is what adverse possession entails. 19. The appellant’s claim was his entitlement to the suit land by adverse possession no doubt pursuant to section 38 of the Act. Paragraphs 1, 2 and 3 of his originating summons attests to this. Besides leading evidence that he bought this land from the respondent in 1973 he also said that he had been staying on the said land peacefully and continuously since that date - a period of over 13 years. The respondent denied having sold the suit land to the appellant but admitted that he had occupied this land illegally in 1973 and since then the two have had disputes over the same. 20. They had been to their local Assistant Chief over the matter. 21. Clearly the issue for determination by the superior court was whether the appellant was in adverse possession of the suit land for a period of 12 years to entitle him to the same under section 38 (1) of the Act. That court could only do this by drawing the necessary legal inferences from the proved facts. Thus, a finding on facts in this regard was necessary. A cursory disposal of the issue for decision was https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 5

page 5 of 8

injudicious. With the materials before him, albeit scanty and somewhat muddled, the trial judge had an obligation to make a finding on facts relating to the issue for adjudication and thereafter draw the necessary legal inference. Simply saying that the evidence adduced in support of the appellant’s claim fell short of the required standard to warrant the grant of the orders he sought was no such finding. This was too summary a determination of a claim upon which the appellant’s sole livelihood may have depended. Without a finding of facts in connection with the appellant’s claim, the conclusion by the trial judge that the appellant had failed to prove his case on a balance of probabilities is wrapped up with incertitude whether justice was done. 22. As I said at the beginning of this judgment, the appellant’s supporting afidavit to his originating summons did not have annexed to it a certified extract of the title to the parcel of land out of which the suit land was claimed. Save what the parties deponed to in their respective afidavits and the oral evidence before the superior court, the certainty of the existence and proprietorship of the suit land could not otherwise be guaranteed. An order under section 38(1) of the Act was not therefore capable of being made. It is for this reason only that I would dismiss the appellant’s appeal with costs to the respondent. Judgment of Cockar Ag Ja. 23. The appellant (the plaintifi in the Superior Court) filed an application by way of an originating summons in the Superior Court in which he prayed that he may be registered as proprietor of 6 acres (the 5 unit premises) in land parcel No East Wanga/ Isongo/ 1512 measuring 9 acres on the ground that he had been in adverse possession of the said 6 acres since 1973 for a period of 13 years. It is stated in the originating summons that the suit premises were registered in the name of the respondent (who was also the respondent in the Superior Court). In the 10 supporting afidavit facts are deponed to the sale of the said 6 acres for shs 3,000/- which was paid to the Respondent in full, quiet and undisturbed adverse possession of the suit premises which the appellant claimed to have enjoyed for over 13 years. 24. In his replying afidavit the respondent deponed that he had disputed with the appellant both the sale and the latter ’s occupation of the suit premises during a period which included appearances before a panel of elders on numerous occasions. 25. The matter was at first by consent referred by the court to arbitration but the award was later set aside and the originating summons proceeded to trial. 26. In his judgment the learned Judge found that an agreement of sale, if any, was made between the appellant’s father and the respondent’s brother but that no agreement of sale had ever been made between the appellant and the respondent. 27. This appeal from the dismissal of the appellant’s Originating Summons is based on 7 grounds which can be condensed as following:1. The fact that the appellant had been in physical possession of the suit premises for more than 12 years, and had thereby acquired adverse possession had been ignored by the Superior Court. 2. The trial Judge had ignored the evidence that the respondent sold the 35 suit premises because the respondent’s brother had relinquished his own portion — meaning that the respondent’s brother had relinquished his own land No 1511 to the respondent. 3. The respondent was aware that his brother had sold the land to the appellant and that is why he had neither queried nor resented access 40 given to the appellant and his occupation of the suit premises until he filed the Originating Summons. The learned trial judge had not given any weight to this evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 6

page 6 of 8

28. The appellant in his submissions to us reiterated that which is contained in the above summed up grounds of appeal. The respondent had nothing new to add to what he had deponed to in his replying afidavit and what he had said in his evidence in the Superior Court. He maintained that parcel No 64 was the only parcel of land which, he knew, existed and was still registered in his father ’s name. The appellant, however, said that parcel No 64 had been sub-divided and demarcated and he was occupying subdivision No 1512 which was part of parcel No 64. 29. As far as grounds No 2 & 3 summed up above are concerned, these relate to matters of evidence. The learned trial judge had considered all these points in his evaluation and in our view had come to a correct conclusion that no agreement of sale had ever been-made between the appellant and the respondent but that if an agreement of sale had been made the parties thereto were the appellant’s father and the respondent’s deceased brother. Accordingly he dismissed the suit. We have no reason to difier from the findings of the learned judge on the issue of sale of the suit premises. 30. We now come to the ground of appeal which complains that the trial judge had ignored that the appellant had been in possession of the land for over 13 years and had thereby acquired ownership by adverse possession. 31. The claim as drafted in the originating summons is based on adverse possession arising out of uninterrupted occupation for over 13 years since 1973. But in the judgment there is no mention at all of adverse possession. The trial judge has, however, mentioned in the judgment that it was not clear in what capacity the plaintifi had come to court or why he had used the defendant. It is to be noted that in the supporting afidavit the depositions made by the appellant have mentioned both an agreement of sale and adverse possession. But the whole of the evidence that was led by the appellant and his witnesses was directed only to prove the sale of land to the appellant by the respondent. The sale between the parties was emphatically denied by the respondent and his witnesses. 32. The position, therefore, is that the appellant appears to have been put into possession of the suit premises in 1973 with the approval of someone apparently in authority in the family of the respondent. As to when had the respondent started showing his disapproval to this occupation by the appellant is not at all clear from the evidence. That is vital because adverse possession and possession with permission. cannot co-exist. Adverse possession does not start until the date of possession with permission (which usually follows a sale of land) expires Civil Appeal No 10/1982 Wambugu vs Kamau Njuguna reported in decisions of the Court of Appeal for Kenya Vol II — 1983 page 51. 33. The originating summons itself is incomplete in so far as the claim is made under adverse possession. Order 36 rule 3D(2) has prescribed that the summons shall be supported by an afidavit to which a certified extract of the title to the land in question has been annexed. No such certified extract of title has been annexed to the afidavit in question. 34. Further the appellant is claiming adverse possession in respect of 6 acres of land in plot No East Wanga/ Isongo/ 1512 which measures 9 acres and which itself was part of the parcel of land Title No East Wanga/Isongo/ 64 consisting of 60 acres of land. But the certificates of final search (ExD) produced by the respondent showed that as at 27th April, 1989, the said parcel No 64 belonged to five persons including the respondent as proprietors. There was no evidence that the said parcel had by then been sub-divided or that any sub-division thereof had been registered in the name of the respondent. 35. Considering all the aspects involved in this appeal we are satisfied that the learned judge was quite right in dismissing the originating summons. The appeal is dismissed. https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 7

page 7 of 8

36. As neither party was represented by an advocate there shall be no order as to costs. Orders accordingly. Judgment of Hancox Cj. 37. I have had the advantage of reading in draft the judgment of Cockar Ag JA. I agree with it and have nothing to add. 38. As Gicheru JA also agrees, the appeal is dismissed with no order as to costs, as proposed by Cockar Ag JA. DATED AND DELIVERED AT KISUMU THIS 27TH DAY DECEMBER , 1990 ARW HANCOX …………….. JUDGE OF APPEAL JE Gicheru …………….. JUDGE OF APPEAL AM Cockar …………….. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1990/63/eng@1990-12-27 8

page 8 of 8