Njuguna & 31 others v Karanja & another

GRACE WANGUI KIMANI (JOINTLY .......................................... 20TH PLAINTIFF JOHN KAMAU NDUNGU SUING AS THE LEGAL ADMINISTRATOR OF THE ESTATE OF JOSEPH NDUNG’U KAMAU(DECEASED) .............. 21ST PLAINTIFF RAPHAEL MUROKI MWAURA .................................................... 22ND PLAINTIFF LAWRENCE THUKU ....................................................................... 23RD PLAINTIFF NANCY WANJIRU NGIGI .............................................................. 24TH PLAINTIFF ROSE WAMBUI MAINA .................................................................. 25TH PLAINTIFF EUNICE WAIHIGA KIHU ............................................................... 26TH PLAINTIFF GACHIE MUIRURI ........................................................................... 27TH PLAINTIFF JOSEPH MULONZI MUINDI .......................................................... 28TH PLAINTIFF KEZIAH WAMBUI MWANIKI ........................................................ 29TH PLAINTIFF ELIUD MWANGI KURIA ................................................................ 30TH PLAINTIFF GEOFFREY KAMAU MUIRURI ...................................................... 31ST PLAINTIFF HENRY NGESA AWANGE ............................................................... 32ND PLAINTIFF AND MARGARET NJOKI KARANJA ................................................... 1ST DEFENDANT AGATHA NJAMBI KARIUKI ....................................................... 2ND DEFENDANT JUDGMENT 1. In the present suit commenced by way of an originating summons dated 10/5/2021 the 32 plaintis have sued the 2 defendants for determination as to whether they have acquired title to the plots that they occupy by way of adverse possession. 2. The plots were sold to the plaintis long ago. The plaintis claim to have purchased plots excised from Land reference number 1556/125 through individual sale agreements with each plot being assigned a specic number. All the transactions occurred between 2007 and November 2008, and they were undertaken on behalf of the defendants by their agents, Kenka Agencies, and the plaintis took possession of their respective plots on the dates of their respective agreements, having fully paid the consideration, and have remained thereon enjoying quiet possession and they have also undertaken major developments thereon including their own homes or rental houses. They have resided on the plots for more than 12 years. Though the land was assigned agricultural use, the defendants never obtained consent of the land control board within 6 months as required by law. The sale agreements were therefore invalidated by that omission. The defendants on 17/6/2016 submitted for registration a survey plan which was approved leading to the acquisition of new numbers for the individual plots. However, they have failed to transfer the lands to the plaintis and have instead transferred costs of the subdivision process to the plaintis as well as made other unreasonable demands. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 2

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The Response 3. The defendants appear to have been served with the originating summons on May 22, 2021. This is as per the adavit of service dated May 10, 2022 sworn by one Jacob Obulemire. However, they failed to le appearance of defence to the suit and it proceeded ex parte. Evidence of the plaintis. 4. The plaintis called one witness who testied on their behalf in the matter on 22/6/2022. This was Zackariah Kimani Njuguna, the 1st plainti. He testied that he knows all the other plaintis and that they had granted him authority to represent them in the case. He adopted his own statement and stated that the members know one another and assist one another in times of distress. He produces a copy of the certicate of title for plot number 1556/125. He purchased his plot in 2008 and built a house and settled thereon. His residence is connected to public utilities of electricity and water. He averred that the plaintis had fullled their obligations to the defendants through the latter’s agents. However, they have never been issued with title to the plots that they are in possession of. No action has ever been taken to evict them also. The defendants are aware that the plaintis live in their plots on the land. PW1 normally sees the sellers within the vicinity as they visit their other land situate near his dwelling. The defendants have never prevented the plaintis from construction on the plots. According to him, his plot on the survey plan he produced is plot no 708. That map is registered with the survey department. The plaintis pray for titles to the plots that they hold. Submissions 5. The parties did not le any submissions in the matter. Analysis And Determination 6. The plaintis aver that they have acquired title to the suit premises by way of adverse possession. They aver that they have been in possession of the plots which have been identied by their respective numbers. These plots arose from the subdivision of plot number 1556/125 which belonged to the defendants. The defendants never transferred the titles to the plaintis hence the suit. A dispute appears to have arisen from the defendants’ alleged demand for costs associated with subdivision of the main parcel from the plaintis. It is stated that 12 years have lapsed since the agreements between the plainti and the defendants became void and that the defendants have been in physical occupation of the suit plots without any interruption to date, though it is acknowledged that the defendants have recently made threats to evict them. I have examined the bundle of documents led by the plaintis in detail and found that they have exhibited their respective transactional documents. 7. The defendants have not opposed the originating summons despite service on them as per the adavit of service dated 10/5/2022 sworn by one Jacob Obulemire, a process server. 8. The plaintis produced a Certicate of Title for Plot No 1556/125 which shows that it was registered in the names of Margaret Njoki Karanja and Agatha Njambi Kariuki the defendants herein for a leasehold term of 999 years with eect from January 1920. 9. As pointed out before, the plaintis are alleging that the plots they seek to be allocated arose from the subdivision of plot number 1556/125. In support of their claims they produced maps as P Exh 9(a) and 9(b). https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 3

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10. Exh 9(a) is a map showing subdivisions No 726 – 779 with the original number indicated as 1556/670/57-110 while P Exh 9(b) is a map for parcel No LR No 1556/671-725 with the original No. indicated as 1556/670/2-56. 11. The law on Adverse possession is well settled and the Court of Appeal in the case of Wambugu v Njuguna [1983] KLR 173 held that Adverse possession contemplates two concepts which are possession and discontinuance of possession. The court further held that the proper way of assessing proof of adverse possession would be whether or not the title holder has been dispossessed or has continued his dispossession for the statutory period and not whether or not the claimant has proved that he or she has been in Possession for the requisite number of years. 12. The court in the case of Mbira v Gachuhi [2002] IEALR 137 set out the requirements for adverse possession as follows: “ …a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutory prescribed period without interruption…” 13. The Court of Appeal in the case of Mtana Lewa v Kahindi Ngala Mwangandi [2005] eKLR as follows: “ Adverse Possession is essentially a situation where a person takes Possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya 12 years.” 14. Further, Madan, JA in the case of Public Trustee v Wanduru Ndegwa [1984] eKLR held as follows: “ A purchaser in possession of the land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run under section 10(1) of the English Limitation Act, 1939 (closely akin to our section 7) as against the vendor: Bridges v Mees (1957) 1 Ch 475 at 484; referred to with approval by this court in Mwangi Githu v Livingstone Ndete and others, CA No 24 of 1979 (unreported).” 15. I am persuaded on a balance of probabilities that the parcels of land that the plaintis are seeking to be granted title over by the court are as a result of subdivision of the main plot number LR No 1556/125 and that the defendants were the owners of that main plot before its subdivision. The plaintis have also established on a balance of probabilities that they have had possession of the suit lands, and that they have dispossessed the defendants of those lands, for a period exceeding 12 years nec per vim, nec clam nec precario. I have noted the photographs of the plaintis’ permanent residential dwellings in this unopposed case. The manner in which the plaintis have put the land to use is proof of animus possidendi. 16. On the other hand, the defendants have not opposed the plaintis’ claims despite service of process upon them. Consequently, I nd that the plaintis have proved their claim in adverse possession on a balance of probabilities and I give judgment in their favor against the defendants and I issue the following nal orders: a. The plaintis listed herein below have established that they have acquired title by way of adverse possession in respect of the plots listed against their names: i. Zackaria Kimani Njuguna- LR No 1556/708 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 4

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ii. Julius Njuguna – LR No 1556/746 iii. Peter Muchiri Muiruri - LR No 1556/739 iv. George K Runo - LR No 1556/716 v. Godwin Kamau Gitau – LR No 1556/709 vi. Zablon Karanja Mbugua – LR No 1556/735 vii. Anne Wanjiru Kinani – LR No 1556/727 viii. Virginia Wairimu Maina – LR No 1556/742 & 1556/741 ix. Francis Ndungu Kihuga – LR No 1556/760 x. Cosmas Ndungu Njoroge – LR No 1556/729 xi. Jacqueline Njambi Waweru – LR No 1556/725 & 1556/724 xii. Joseph Matu Maina – LR No 1556/733 xiii. Pauline Wanjiru Nduuru – LR No 1556/744 xiv. Paul Mugo Ngige – LR No 1556/730 xv. Jacinta Wambui Ng’ang’a – LR No.1556/747 xvi. Juddy Muthoni Ng’ang’a – LR Nos 1556/737 & 1556/738 xvii. Eunice Wanjiku Githuku – LR No 1556/763 & 1556/762 xviii. John Ndegwa Kimani – LR No 1556/723 xix. Peter Gitundu Muhungura – LR Nos 1556/683, 692, 681, 680, 679, 678 & 677 xx. Joel Kimani Kamau And Grace Wangui Kimani (jointly) – LR No 1556/749 xxi. John Kamau Ndungu suing as the legal administrator of the estate of Joseph Ndung’u Kamau (deceased) – LR No 1556/753 xxii. Raphael Muroki Mwaura – LR No 1556/731 xxiii. Lawrence Thuku – LR No 1556/757 xxiv. Nancy Wanjiru Ngigi – LR No.1556/756 xxv. Rose Wambui Maina – LR No 1556/732 xxvi. Eunice Waihiga Kihu – LR No 1556/740 xxvii. Gachie Muiruri – LR No 1556/705 xxviii. Joseph Mulonzi Muindi – LR No 1556/707 & 1556/706 xxix. Keziah Wambui Mwaniki – LR No 1556/734 & 1556/751 xxx. Eliud Mwangi Kuria – LR No 1556/779 xxxi. Gorey Kamau Muiruri – LR No.1556/736 xxxii. Henry Ngesa Awange – LR No 1556/759 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 5

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b. The defendants shall within 60 days of this judgment execute all documents requisite for transfer of the titles to the suit lands to the plaintis listed herein below in respect of the parcels listed opposite their names: i. Zackaria Kimani Njuguna- LR No 1556/708 ii. Julius Njuguna – LR No 1556/746 iii. Peter Muchiri Muiruri - LR No 1556/739 iv. George K. Runo - LR No 1556/716 v. Godwin Kamau Gitau – LR No 1556/709 vi. Zablon Karanja Mbugua – LR No.1556/735 vii. Anne Wanjiru Kinani – LR No 1556/727 viii. Virginia Wairimu Maina – LR No 1556/742 & 1556/741 ix. Francis Ndungu Kihuga – LR No 1556/760 x. Cosmas Ndungu Njoroge – LR No 1556/729 xi. Jacqueline Njambi Waweru – LR No 1556/725 & 1556/724 xii. Joseph Matu Maina – LR No.1556/733 xiii. Pauline Wanjiru Nduuru – LR No 1556/744 xiv. Paul Mugo Ngige – LR No 1556/730 xv. Jacinta Wambui Ng’ang’a – LR No 1556/747 xvi. Juddy Muthoni Ng’ang’a – LR Nos 1556/737 & 1556/738 xvii. Eunice Wanjiku Githuku – LR No 1556/763 & 1556/762 xviii. John Ndegwa Kimani – LR No 1556/723 xix. Peter Gitundu Muhungura – LR Nos 1556/683, 692, 681, 680, 679, 678 & 677 xx. Joel Kimani Kamau And Grace Wangui Kimani (jointly) – LR No 1556/749 xxi. John Kamau Ndungu suing as the legal administrator of the estate of Joseph Ndung’u Kamau (deceased) – LR No 1556/753 xxii. Raphael Muroki Mwaura – LR No 1556/731 xxiii. Lawrence Thuku – LR No 1556/757 xxiv. Nancy Wanjiru Ngigi – LR No 1556/756 xxv. Rose Wambui Maina – LR No 1556/732 xxvi. Eunice Waihiga Kihu – LR No 1556/740 xxvii. Gachie Muiruri – LR No 1556/705 xxviii. Joseph Mulonzi Muindi – LR No.1556/707 & 1556/706 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 6

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xxix. Keziah Wambui Mwaniki – LR No 1556/734 & 1556/751 xxx. Eliud Mwangi Kuria – LR No 1556/779 xxxi. Gorey Kamau Muiruri – LR No 1556/736 xxxii. Henry Ngesa Awange – LR No 1556/759 c. If the defendants do not comply with order no (b) herein above the Deputy Registrar of this court shall execute all documents necessary to eectively transfer the suit properties in accordance with the claim of each plainti as set out in this suit. d. An order of permanent injunction is hereby issued restraining the defendants or their agents or any person claiming under them from interfering with the plainti’s use and occupation of the suit properties or their title in any way. e. Each party shall bear their own costs of the suit. It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 24TH DAY OF OCTOBER, 2022. MWANGI NJOROGE JUDGE, ELC, NAKURU https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13643/eng@2022-10-24 7

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