Muriungi v M'Puria

6. The plainti produced a copy of the agreement as P. Exh (1), copy of the register as P. Exh (2), photographs as P. Exh (3) and lastly a copy of the register for LR No. 481 as P. Exh (4) respectively 7. In the written submissions dated 27.7.2022, the plainti submitted that he has been in occupation of LR No. 1396, which is a resultant subdivision of LR No. Abothuguchi/L-Kaongo/481 since taking possession on 15.11.1994 without any interference by the defendant. He urged the court to nd that he has proved the ingredients of adverse possession as set out in the Land Act, Land Registration Act and the Limitations of Actions Act. 8. Given that the evidence tendered and which is not challenged by the defendant, the plainti urged the court to nd that he has discharged the evidentiary burden under Sections 107 – 109 of the Evidence Act. Reliance was placed on KPLC Ltd vs Pamela Awino Ogunyo (2015) eKLR. 9. On the ingredients of adverse possession, the plainti submitted his evidence shows that he disposed and discontinued the defendant from the land for over 12 years. Reliance was placed on Wambugu vs Njuguna (1983) KLR 173 Mbira vs Gachuhi (2002) 1EA LR 137 Jandu vs Kirplal & another (1975) E.A 225 Mtana Lewa vs Kahindi Ngala Mwangandi (2005) eKLR. 10. A party seeking the court to nd him or her entitled to land ownership under adverse possession has to establish and prove two key concepts namely dispossession and discontinuation of the rights of the registered owner. 11. In Sisto Wambugu vs Kamau Njuguna (1983) eKLR the court said possession is a question of fact depending on the particular circumstances of the case. Further the court held that dispossession includes acts inconsistent with the enjoyment of the soil by the registered owner for the purpose of which he intended to use it. The court said that possession must also be without the permission of the registered owner, without force, in open, uninterruptedly and exclusively. 12. As to permissive possession, in Jandu vs Kirplal (1975) E.A 225 the plainti had only paid 10% of the purchase price, registered a caveat and claimed that the owner was a trustee for him. The court held that the plainti had been put into possession with the consent of the owner and since he had not paid the full purchase price, possession could not be adverse until the end to the period for which permission to occupy had been given or clearance of the entire purchase price. 13. In Watuko vs Busolo & 3 others (civil) Appeal no. 129 of 2017 (2022) KECA 171 (KLR) 18th February (2022) Judgment, the court stated that adverse possession commences in a situation where an intruder who is in wrongful occupation and makes a claim of ownership against a right of a true owner by alleging that due to clear and unequivocal evidence, he has been in possession which was not permissible, open, with the knowledge of the true owner and had excluded the true owner from the enjoyment of his property. The court said the onus was on the intruder to prove that the possession was nec vic nec clam, nec precario (no force no secrecy, no evasion, as held in Kimani Ruchine vs Swift Rutherford & Co. Ltd (1980) KLR 10 and Maweu vs Lin Ranching & Farming Coop Society (1985) KLR 430. 14. In this suit, there is no dispute that the possession was permissive in the rst instance. The sale agreement produced herein indicates that the full purchase price was paid, the plainti took vacant possession immediately and started extensively developing the land, to the exclusion of the registered owner. 15. The testimony of the plainti is that he has continued occupying the land to the extent of 2.63 acres uninterruptedly for over 12 years without any resistance or notice to vacate the land by the defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14659/eng@2022-11-09 2

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or his family. The photographs produced shows that the plainti has undertaken acts inconsistent with the rights of the registered owner. 16. Looking at the totality of the evidence tendered and in absence of any challenge either through a defence or contrary evidence, I am inclined to nd the claim proved to the required standard. 17. An order be and is hereby granted that the plainti is entitled to a portion of LR No. Abothuguchi/ L-Kaongo/1396 measuring 2.62 acres which is a subdivision of LR No. Abothuguchi/L-Kaongo/481 by virtue of adverse possession and is entitled to be registered as the true owner. 18. The Deputy Registrar of this court is hereby empowered to sign all the necessary forms to eect the transfer of the suit land to the plainti, in default of the defendant so signing within two months’ time from the date. Costs to the plainti. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 9TH DAY OF NOVEMBER, 2022 In presence of: C/A: Kananu No appearance HON. C.K. NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14659/eng@2022-11-09 3

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