Ngiti v M'Mwereria

together with his family have used the land continuously and uninterruptedly notwithstanding the fact that the land control board consent was not obtained. The said land was therefore not ocially transferred to the plainti. It is the plainti’s case that the said 0.25 acres of land has clear marked boundaries, but the defendant has started interfering with the plainti’s rights by sub dividing the original parcel of land Nkuene/kithunguri/712 into three sub-divisions, one of which is No Nkuene/ Kithunguri/1584 which falls on the plainti’s land. The plainti has annexed copies of the said agreement marked “PKNI” and copies of the title of the subdivisions marked “PKN 2” “PKN 3” and “PKN 4”. 4. In response to the originating summons, the defendant led grounds of opposition and a replying adavit both dated July 3, 2013. It is the defendant’s contention that the entire summons as drawn and led is frivolous fatally defective, an abuse of the court process and untenable in law for reasons that the same is premised on fraudulent, deceitful and misleading averments and depositions on the part of the plainti, that the summons raises no reasonable cause of action and that the prayers sought by the plainti are unsustainable and unavailable as the pleadings presented in court by the plainti are irreconcilable and incompatible with the accompanying pieces of evidence. 5. The defendant averred that the entire suit is deftly crafted masterpiece designed to defraud him of his land through the judicial process. The defendant has deponed that whereas it is true that he entered into an agreement with the plainti to sell him 0.25 acres to be excised from LR No Nkuene/ kithunguri/712, the plainti has never taken actual possession, fenced the same or eected any developments thereon. The defendant denied that the subdivisions LR No Nkuene/kithunguri/1583, 1584, and 1585 exhibited by the plainti in his supporting adavit are subdivisions of LR Nos Nkuene/Kithunguri/721 and not the land in question, LR No Nkuene/kithunguri 712 as claimed by the plainti. The defendant avers that both parcels are completely distinct and separate and that at no time did he contemplate selling a portion from LR No Nkuene/kithunguri/721 to the plainti. That in the circumstance, the issue of being entitled to a portion measuring 0.25 acres in LR No Nkuene/ kithunguri/1584 by adverse possession is farfetched and baseless. The defendant prayed for the orders of caution and inhibition to be lifted and for the entire suit to be struck out with costs. 6. In his supplementary adavit, the plainti deponed that he stands by the averments in his adavit dated and sworn on August 6, 2012 except to correct the number which reads 712 to 721. He averred that the defendant has not shown that Land Reference No Nkuene/kithunguri/712 exists and that the agreement does not contain a typing error. The plainti maintained that he bought 0.25 acres from the defendant and paid the full purchase price, adding that the land had been identied to him on the ground and that as agreed in the agreement the plainti took possession of the land and has been using it since then. That despite the error in the agreement, the positon is that the plainti has been living on LR No Nkuene/Kithunguri/1584, adding that the technicalities raised by the defendant cannot stand in view of the provisions of the Constitution and the Civil Procedure Act. 7. At the hearing, Peter Kirimi Ngiti the plainti testied as PW 1 and did not call any witness. He was cross examined and re-examined. He testied that he bought the suit land from the defendant who has since subdivided it. That they signed the sale agreement dated February 6, 1997 and that he rst paid the sum of Kes 23,000/= leaving a balance of Kes 2,000/= which he paid later. 8. The plainti stated that he took possession of the land and developed it by planting coee, bananas, nappier grass and grevillea trees and that he is still in possession of the land. 9. His evidence is that no one has disturbed his possession and occupation though he has not been issued with a title deed. The plainti testied that the defendant is now deceased, and that his widow agreed to give him title but the children complained. He stated that at the time he purchased the land, https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 2

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the defendant’s children were still in school and the consideration was used to pay their fees. The plainti produced the sale agreement dated February 6, 1997 and copies of register on LR No Nkuene/ Kithunguri/1583, 1584, and 1585 as Pexhibit 1 to 4 respectively. 10. When cross examined by Mr. Muriithi, learned counsel for the defendant, PW 1 stated that he has not put up a house on the suit land as he lives on another parcel of land which is next to the suit land. He agreed that in the sale agreement produced as P exhibit 1, he was buying 0.25 acres out of parcel no Nkuene/Kithunguri/712, adding that he led a supplementary adavit on August 20, 2013 in which he deponed that parcel no 712 was not owned by the defendant as it belonged to one M’Mutwambari. He stated that parcel no 1584 is a subdivision of parcel Number 712. 11. The plainti stated that he was buying 0.25 acres and that after executing the sale agreement, they went and subdivided the land. He conrmed that the green card for parcel no 1584 (P exhibit 3) the land is measuring 0.18 ha (which is about 0.44 acres). 12. The plainti testied that he placed cautions in all the parcels of land because he had bought one, LR No 1584 which he said he had developed. He stated that he was using the entire parcel no 1584, and that if it is more than 0.25 acres, then that was not his mistake. The plainti conrmed that in the originating summons, he is claiming 0.25 acres out of parcel LR No 1584. That if the land was more than 0.25 acres, the defendant should bring a surveyor to give the plainti 0.25 acres. He stated that he has a receipt for Kes 2,000/= which he was given by the defendant but did not have it before court. 13. When re-examined by Ms Rimita learned counsel for the plainti, the plainti stated that the parcel no 1584 which he is claiming is out of parcel no 721. He further stated that all the parcels came from parcel no 712, that is 721, 1583, 1584 and 1585. That the surveyor came and gave him parcel no 1584 and asked the court to assist him get title because he is in possession and occupation of the land. 14. John Ikunda M’Mwereria (now deceased) the original defendant died on August 6, 2015 and his widow Alice Karambu Mwendwa was substituted in place of the deceased. The defence did not adduce any evidence for the reason that the defendant’s legal representative was not privy to any dealings or transactions that might have occurred in relation to the suit. SUBMISSIONS 15. The plainti led his submissions dated August 23, 2022 and led in court on August 29, 2022. He submitted that he took possession of the suit property in performance of the sale agreement between the plainti and the defendant who was the registered owner of the suit property in 1997. 16. The plainti cited section 3 (3) of the Law of Contract Act which provides that “ No suit shall be brought upon a contract for the disposition of an interest in land unless; a. b. 17. The contract upon which the suit is founded i. Is in writing ii. Is signed by all the parties thereto and The signature of each party signing has been attested by a witness who is present when the contract was signed by such party” The plainti’s submissions is that the proviso to section 3 ( 3) of the Law of Contract Act applies in this case and therefore the sale agreement between the plainti and the deceased defendant did not violate or oend the provisions of the Law of Contract Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 3

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18. The plainti further submitted that in regard to the consent by the land control board, the plainti correctly pleaded that the defendant failed to obtain the same so that transfer in favour of the plainti’s name would be eected. 19. The plainti relied on case of Kimani Ruchire v Swift Rutherford & Co. Ltd (1980) K10 in which Kneller J held that-; “ The plainti has to prove that they used his land which they claim as of right: nec vi, nec clam, nec precario (no force no secrecy no persuasion). So the plainti must show that the company had knowledge (or the means of knowing actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or any endeavors to interrupt it by way of recurrent consideration” 20. The plainti submitted that he entered the suit property in 1997 and occupied the same by claim of right, that his occupation was not only actual and physical but open and uninterrupted, further that he has developed the suit property by planting trees, building houses and farming seasonal crops. 21. The plainti further submitted that time began to run for purposes of his claim for adverse possession in the year 1997 the year of the sale agreement between the said parties and that in that year the plainti took legal possession of the suit property. 22. The plainti also relied on Wambugu v Njuguna ( 1983) KLR where the Court of Appeal held; “ Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the license is determined.” 23. The plainti contends that entry to the suit property was pursuant to a sale agreement in 1997 with the plainti as a bona de purchaser for value and that the entry was with the permission of the defendant ( registered proprietor then) qua vendor 24. The plainti relied on the case of Public Trustee v Wandura (1984) KLR 314 where at 319 Madam J.A stated “that adverse possession should be calculated from the date of payment of the purchase price to the full span of 12 years if the purchaser takes possession of the property because for that date the true owner is disposed o possession. 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.” 25. The plainti further relied on the case of Mwangi & another v Mwangi (1986) KLR 2328 in which it was held that rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights. 26. The plainti also cited the case of Public Trustee v Wandura (1984) KLR 314 at 321 in which it is stated that a purchaser in possession has an overriding interest under the provisions of the Registered Land Act (now repealed). 27. The plainti referred to the dicta in the case of Mwangi (supra) that establishes the principle that the right of a person in possession or occupation of land are equitable rights which are binding on the land. 28. The plainti submitted that his occupation was therefore possessory right and are not only equitable rights but an overriding interest binding on the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 4

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29. The plainti cited section 7 of the Limitation of Action Act that provides that: “ An action may not brought by any person to recover land after the end of twelve years from the date on which the right of actions accrued to him or, if it rst accrued to some person through whom he claims to that person” 30. The plainti prayed that his summons be allowed in terms of the prayers sought therein. 31. In her submissions led on September 28, 2022, the defendant submitted that the plainti’s contention is that he has acquired ownership of a portion measuring 0.25 acres in LR No Nkuene/ Kithunguri/1584 as excised from LR Nkuene Kithunguri/712. The defendant submitted that it is clear that LR No Nkuene/Kithunguri/1584 is not a subdivision of LR No Nkuene/Kithunguri/712 as evidenced from the green card availed by the plainti. 32. The defendant further submitted that, be that as it may a claimant under the doctrine of adverse possession must in his evidence demonstrate that they have been in occupation of the suit land for a period exceeding twelve (12) years without the true owner’s permission, that the owner was dispossessed or discontinued his possession of the land and that the adverse possessor has done acts on the land, which are inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it as seen in John Ndung’u Kipsoi v Samwel Chepkulul & another ( 2018) eKLR 33. The defendant submits that in the instant case the entry of the plainti is claimed to have been with the permission of the registered owner on the strength of a sale agreement. The defendant further contends that in the circumstances of this suit it is pertinent for them to address their mind on the legal implications of entry into a parcel of land with the permission of the registered owner and the subsequent lapse of the statutory period of twelve (12) years. 34. The defendant relied on Christopher Kioi & another v Winnie Mukolwe & 4 others ( 2018) eKLR in which the Court of Appeal held-; “ But even if it were accepted that Kioi took possession of the suit property pursuant to the alleged agreement for sale, in itself would negate a claim based on adverse possession because the possession would have been with the consent of Kituri” 35. The defendant further relied on a passage quoted by the Court of Appeal in Samuel Miki v Jane Njeri Richu CA No 122 of 2001 that: “ It is trite law that a claim of adverse possession cannot succeed if the person asserting the claim is in possession with the permission of the owner of or in pursuance to an agreement of sale or lease or otherwise.” 36. The defendant further relied in the case of Mbaoni M’Ithara v James Mbaka ( 2018 ) eKLR in which the court of appeal cited with approval the following passage made in Wambugu v Njuguna 1983 KLR 172 “ Where the claimant is in exclusive possession of the land with leave and license of the appellant in pursuance to a valid agreement, the possession becomes adverse and time begins to run at the time the licence is determined. Prior to the determination of the licence the occupation is not adverse but with permission. The occupation can only be either with permission or adverse the two concepts cannot co-exist.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 5

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The learned judges further stated “ The appellant had a duty to establish indeed he occupied the suit lands by virtue of a contract of sale, which means he entered through a licence and when the validity of the contract ceased to give way for a claim of occupation without permission (nec vi nec clam, nec precario) without force, without secrecy and without permission.” 37. The defendant contends that in the instant case the plainti did not lead evidence on the particulars of the contract and that a perusal of the agreement indicates that the balance of Kes 2,000/= was to be paid on an unspecied date in future and that the plainti did not prove that such payments was even made. 38. The defendant quoted the decision made in Joseph Ngareh Kanyeria v Sarah Wandia Njogu ( sued in the capacity of the legal representative of the estate of Njogu Kibaka ( deceased) 2020 eKLR in which the court quoted the following passage made in the court of appeal case of Wambugu v Kamau Njuguna Civil appeal No 10 of 1982;“ …if a purchaser has not paid the full purchase price, time for adverse possession does not begin to run and that it will only be deemed to start running after the full purchase price is paid” While applying the same principle the High court held:I agree with the position of the law as re-stated in the above decision. The plainti has not proved to the satisfaction of the Honourable court that he has paid the last instalment of Kes 6,000/=. The only conclusion that can logically be drawn from the evidence by the parties is that the plainti was occupying the suit property as a purchaser.” 39. It is the defendant’s submissions that the plainti has failed to prove his claim to the required standard and prayed that the suit be dismissed with costs. ANALYSIS AND DETERMINATION 40. This court has carefully considered the pleadings, the evidence and the submissions led by the parties to buttress their assertions. I have also taken into account the legal authorities proered by the parties. The court identies the following issues for determination. i. Whether the plainti has proved that he has acquired 0.25 acres in LR No Nkuene/Kithangari/1584 through the legal doctrine of adverse possession. ii. Whether the plainti is entitled to the reliefs sought. 41. In deciding whether or not the plainti has proved his claim for adverse possession to the required standard in civil cases, the plainti must prove that he has been in occupation of the suit land measuring 0.25 acres for a period of over twelve (12) years, that such occupation was open, peaceful and continuous without interruption from the registered owner and that such occupation was adverse i.e inconsistent with the right of the registered owner. 42. In Wambugu v Njuguna ( 1983) KLR 173 the Court of Appeal restated the principles for adverse possession and held as follows-; “ 1. The general principle is that until the contrary is proved, possession in law follows the right to possess.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 6

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43. 2. In order to acquire by the statute of limitations title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued 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 or had discontinued possession of the suit land for a continuous statutory period of twelve years as to entitle him, the respondent, to title to that land by adverse possession. 3. 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 whether or not the claimant has proved that he has been in possession for the requisite number of years.” In the case of Mtana Lewa v Kahindi Mangandi [2015] eKLR, the Court of Appeal (Makhandia) JA stated as follows; “ Adverse possession is essentially a situation where a person takes possession of land and asserts right 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 is twelve ( 12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 44. The doctrine of adverse possession is embodied in 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 rst accrued to some person through whom he claims to that person”. 45. Section 13 of the same act further makes provisions for adverse possession as follows-; (1) a right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this act referred to as adverse possession and where under section 9, 10, 11 and 12 of this Act a right of action to recover possession on the date, a right of action does not accrue unless and until some person takes possession of the land. 2) Where a right of action to recover land has accrue and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 7

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46. Section 38 (1) of the Limitation of Action Act provides that; “ (1) Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 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.” 47. In this case, the plainti testied that he entered into a sale agreement with the defendant on February 6, 1997 for the purchase of a portion of land measuring 0.25 acres in LR No Nkuene/Kithunguri/721 at a consideration of Kes 25,000/= out of which he paid Kes 23,000/= on the day of executing the agreement and the balance on a subsequent date. It was the plainti’s testimony that he immediately took possession of the land in February, 1997 and has been in occupation since then until the time the suit was led in the year 2012. The plainti further testied that there was an error in the agreement for sale in which the land was referred to as LR No Nkuene/Kithunguri/712 instead of Nkuene/ Kithunguri/721. Indeed in his supplementary adavit in support of the originating summons the plainti sought to correct the number to read 721 instead of 712. 48. The plainti further testied that the original land was subdivided by the defendant and the portion sold to him and which he is in possession and occupation is LR No Nkuene.Kithunguri/1584 which was excised from LR No Nkuene/Kithunguri/721. As already stated, the defence did not adduce any evidence for the reason that the defendant’s legal representative was not privy to any dealings or transactions that might have occurred in relation to the suit land. The evidence of the plainti therefore remains uncontroverted. Though the defendant never adduced any evidence to challenge the plainti’s evidence, the burden on the plainti to prove his case remains the same and that burden of proof is in no way lessened because the defendant did not adduce any evidence (see Karugi & another v Kabiya & 3 others (1987)KLR 347 and Charter House Bank Limited (under statutory Management) v Frank N Kamau [2016] eKLR) 49. From the material placed before me, there is no dispute that the defendant is the registered owner of the suit property. The plainti placed before the court the agreement for sale, copies of titles including for subdivision LR No Nkuene/Kithunguri/1584. 50. The plainti testied that he purchased a portion of the land measuring 0.25 acres on February 6, 1997, took possession and is still in possession and occupation, but has never gotten title. In my humble view, the mere change of the title number due to subdivision of the original title that was sold and which the plainti took possession of does not make the plainti’s claim to fail. 51. In the case of Githu v Ndeete 1984 (KLR) 766, the Court of Appeal held that “a title by adverse possession can be acquired under the Limitation of Actions Act to a part of the parcel of land which the owner holds title”. In Kasure v Mwaani Investments Ltd & 4 others (2004) KLR 184, at page 188, it was stated-; “ In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and as of right and without interruption for a period of 12 years, either after dispossessing the owner or by discontinuation of possession by the owner on his own volition. See Wanje v Saikwa (1984) KLR 284”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 8

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52. In the case of Public Trustee v Wanduru ( 1984) KLR 314, the claimant who had entered into a written agreement with the registered owner for purchase of the land and took possession of the land just as in the present case, the court of appeal held inter alia, that-; “ the period of twelve years began to run the day the appellant and her husband took possession of the land as that was the day when the respondent’s possession was discontinued, and not on the last day by which an application for the consent of the land control board was required to have been made under the Land control Act as that Act did not apply to the appellants’ claim” The Court of Appeal further stated-; “ 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 a kin to our section 7) as against the vendor”. 53. In this case, the plainti testied that he took possession upon executing the agreement for sale and later cleared the balance of the purchase price. There was no evidence adduced to challenge these assertions as the defence never adduced any evidence. I am therefore satised that based on the uncontroverted evidence given by the plainti, the plainti has acquired a portion of the suit land measuring 0.25 acres. 54. Counsel for the defendant submitted that the plainti’s claim must fail because the entry of the plainti was with the permission of the defendant as the registered owner on the strength of the said agreement for sale. However, the plainti’s cause of action, in my view, arose not from the agreement of sale but from the claim of adverse possession under the Limitation of Actions Act, cap 22 Laws of Kenya. In this case, the plainti testied that he immediately entered the land upon the execution of the sale agreement on February 6, 1997 and that he was still in possession and occupation as at the time of ling suit on August 7, 2012. That was a period of about 15 years. There was no evidence tendered by the defence challenging the evidence adduced by the plainti. I am therefore convinced that on a balance of probabilities, the plainti has proved his case for adverse possession. The plainti proved that the defendant had either been dispossessed or had discontinued possession of the suit land measuring 0.25 acres for a continued statutory period of twelve (12) years. 55. Considering the totality of the evidence availed in this case, and applying the legal principles as outlined above, I am satised that the plainti has proved his case on a balance of probabilities. It is my nding that the plainti has brought himself within the limits of the doctrine of adverse possession. Presented before this court is undisputed and uncontroverted evidence by the plainti. 56. I nd that the originating summons dated August 6, 2012 has merit and is hereby allowed. I enter judgment as follows: 57. a. That the plainti is hereby declared to have become entitled by virtue of adverse possession of 0.25 acres of land reference No Nkuene/Kithunguri/1584 b. The plainti is entitled to be duly registered as proprietor of the said portion measuring 0.25 acres out of LR No Nkuene/Kithunguri/1584. c. Costs of the suit are awarded to the plainti. Orders accordingly. DATED SIGNED AND DELIVERED AT MERU THIS 7TH DAY OF DECEMBER, 2022 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 9

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In the presence of: Court Assistant – Kibagendi Wambua for plainti Muriithi for defendant C.K YANO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15196/eng@2022-12-07 10

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