Maru v Mutai & another

3. Vide a ruling delivered on 14/2/2022 the application was allowed and injunctive orders issued against the Defendants pending hearing and determination of the suit. 4. On 6/7/2022, directions were issued for the matter to proceed by way of viva-voce evidence thereby converting the Originating Summons to a plaint and the Replying Adavit to a defence. Parties were given time to le their witness statements, and upon compliance the matter was listed for hearing. Plainti ’s Case and Evidence: 5. It is the Plainti’s case that he purchased 1 acre from Benjamin Kiprotich Tanui, the 2nd Defendant in 1992, the said Benjamin Kiprotich Tanui had equally purchased the said 1 acre from the late Samuel Kimagut Mutai husband of the 2nd Defendant. 6. That he purchased and settled on the other 1 acre which he purchased directly from Samuel Kimagut Mutai, the deceased husband of the 1st Defendant. 7. The 1st Defendant did not include the Plainti as a beneciary of the Estate of the late Samuel Kimagut Mutai during the succession proceedings in Kapsabet SPMCC No 6 of 2013. 8. That after the purchase in 1992, the Plainti took possession and has lived thereon together with his family for more than 29 years hence he is entitled to a portion measuring 2 acres in Nandi/ Kebulonik/344. 9. On the basis of the above facts the plainti sought for the orders enumerated at paragraph 1 above. 10. The Plainti testied and called an additional 5 witnesses. It was his testimony that he had purchased 1 acre from the 2nd Defendant who had bought the same from Benjamin Tanui. He produced P Exhibit 1 showing an application for Land Control Board dated 18/9/1993 for subdivision and P Exhibit 2 was the letter of consent dated 22/9/1993 for subdivision as proof that he had bought from Benjamin Mutai, who had bought from the late Samuel Kimagut Mutai. 11. He further produced as P exhibit 3 an Agreement for Sale between himself and the late Samuel Kimutai Magut for the other acre. Agreement was dated 25/9/1993, and the consideration was Kshs 33,000 out of which kshs 31,000 was paid as rst instalment and kshs 2,000/- was paid later. It was his testimony that he developed both 2 acres and built thereon and fenced in the year 1993. He produced photographs of mature trees as P Exhibit 4 (a) and 4 (b) was the fence he had erected; and P Exhibit 4 (e) were his cows which were grazing on the 2 acres. 12. No transfer of title was made in respect of the 2 acres he had purchased and upon request made to the 1st Defendant she declined to transfer hence the ling of the suit. He further produced a copy of the green card in respect of the property showing the 1st Defendant Emily Jeptarus Mutai as the registered proprietor. 13. On cross – examination, he stated that when he bought the property from the late Samuel Kimagut Mutai, and that Emily was present. He did sign the agreement for sale prepared by the village elders. He stated that his wife had earlier bought 5 acres from Mutai which was not in dispute. 14. He stated that he had bought 1 acre from Benjamin Tanui and the late Samuel Mutai gave him the P Exhibit 1 and 2 which he had intended to subdivide to Benjamin Tanui so as to subdivide but did not nalize the subdivision. 15. In re- examination, he stated that he got exhibits 1 and 2 from the late Samuel kimugut Mutai for purposes of subdivision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 2

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16. PW2, Mr Josphat Morogo testied on behalf of the Plainti it was his testimony that initially the Plainti had purchased 5 acres from the Samuel Mutai and a subdivision and transfer in respect of this was made and it was not in dispute. 17. In 1992, he bought an additional one acre from 2nd Defendant Benjamin Tanui who had equally brought from Samuel Tanui. 18. That the late Samuel Kimagut Mutai intended to transfer to the Benjamin Tanui and went to the Land Control Board, for consent to subdivide but he purchased from Benjamin Tanui and was handed the documents (P Exhibit 1 and 2) . 19. In 1993, the Plainti bought an extra two acres from the late Samuel Kimagut Mutai, and in 2001, he bought from Kimagut Mutai an extra 1.2 acres and in 2002 he purchase 0.6 acres. The extra 1.8 acres purchased by Plainti were sold to third parties and there is no dispute on these properties and their acreage as well as the initial 5 acres. 20. The dispute relates to the 2 acres the Plainti purchased from Benjamin Tanui 2nd Defendant and Kimagut Mutai in 1992 and 1993 which acreage were fenced by the Plainti and he had planted trees thereon. 21. In cross examination, the witness stated that he was not a witness to the agreement between Benjamin Tanui and Samuel Mutai. The Plainti resides in Nandi/Kebulonik/345 which borders the two acres in dispute. There was no dispute until 2020 when the 1st Defendant was registered after succession. 22. In re-examination, the witnesses stated that the boundary dispute arose in 2020 after the death of late Samuel Mutai. 23. PW3, Mr Jacob Kipsang Chumba testied on behalf of the Plainti. He adopted his witness statement dated 16/2/2022, it was his testimony that Benjamin Tanui, the 2nd Defendant brought from the Samuel Kimagut Mutai, since he bought grass from Benjamin Tanui for thatching his house and was aware that Benjamin Tanui sold the property to the Plainti in 1992. 24. In cross examination, he stated that Nandi/Kebulonik/344 belonged to Samuel Mutai. He was sure that the late Benjamin Kimagut Tanui had bought from Samuel, since Benjamin had fenced o the property which was not possible in a lease, he was not a witness to the sale between Benjamin Tanui and the late Samuel Kimagut Mutai. 25. PW4, a neighbour to the Plainti Joseph Kibet Rono equally testied. It was his testimony that the Plainti had purchased 5 acres from the Benjamin Tanui, initially then the 2nd Defendant in 1992 sold 1 acre to the Plainti and in 1993 the late Samuel Mutai sold to Plainti 1 acre to make it 2 acres. 26. After the demise of the late Samuel Mutai, the Widow and administrator of his estate Emily Mutai the 2nd Defendant started demanding for the 1 acre in 2020, although the Plainti uses both acres. 27. In cross – examination, he stated that he was not present during the sale between Benjamin Tanui and the Plainti; but as a neighbour he became aware of the sale. 28. John Morogo Busienei, a village elder now retired; and he produced P Exhibit 3, and Agreement for Sale between the late Samuel Mutai and Stanley Maru for the purchase of 1 acre, which he had authored. 29. In cross – examination, he stated that at time of writing the agreement, the late Samuel Mutai and his wife were present together with their son Gideon but were not recorded as present. The 1st Defendant and his son Gideon did not sign the agreement but were present. The consideration was Kshs 33,000, where Kshs 31,000 was paid and Kshs 2,000 paid on 2nd instalment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 3

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30. John Kimeli Tanui, was the last witness, testied as PW6. It was his testimony that as a family of 3 brothers, they all bought 1 acre in 1990 from the late Samuel Kimagut Mutai, but the same was registered in the name of Benjamin Tanui the 2nd Defendant. 31. That in 1992, the 2nd Defendant as their brother sought their consent and sold the property to Stanley Maru, the Plainti. 32. In cross – examination, the witness stated that they did not have the agreement to show purchase of the 1 acre. He stated that he had bought the property at kshs 12,000/=. He stated that he lived in Kamoiywo together with the 2nd Defendant in their mother’s property and have not diered with Benjamin the 2nd Defendant. 33. After the testimony of the 6 witnesses the Plainti’s case closed. Defendants Case And Evidence: 34. The Defendant Emily Mutai testied as DW1, she adopted her witness statement dated 16/3/2022 together with the Replying Adavit which had been converted as a defence. 35. It was her testimony while producing the documents/annextures in her Replying Adavit as D Exhibit 1 to 4, that she was the administrator of the Estate of her late husband Kimagut Samuel. It was her testimony that there was a boundary dispute between her late husband and the Plainti in 2020. The elders tried to arbitrate and a resolution was made that she be given the property. She further stated that the Plainti had sold the property to other people and hence she was not able to transfer the property. 36. In cross – examination she admitted that Stanley Maru the Plainti had initially bought 5 acres. When shown photographs she admitted that trees in photograph 1 (P Exhibit 4a) were on the 5 acres bought by Stanley. She had not seen the trees on photograph 2 (P Exhibit4b) she stated further that the Plainti had sold the property to 3 other people hence she was not able to transfer the property; to the Plainti as the other people are in occupation of the property and not the Plainti. 37. In further cross – examination she stated that the original property was number Nandi/Kebulonik/140 which was subdivided into Nandi/Kebulonik/344 belonging to her and Nandi/Kebulonik/345 belonging to the Plainti and his wife. There was no dispute in relation to 345 belonged to the Plainti. She stated that the Plainti encroached on her property after the demise of her husband. 38. In re-examination, she stated that she did not recall the surveyor reading the report. 39. DW2, the 2nd Defendant Benjamin Kiprotich Tanui. He adopted his witness statement as part of his evidence in chief. In the said statement, he stated that he had entered into an oral agreement with the deceased husband of the 1st Defendant over Nandi/Kebulonik/344 allowing him to use the said parcel for grazing of his cows. That he used the parcel for 2 years and paid him to the use. 40. It was his evidence that he never sold the parcel of land to the Plainti as it never belonged to him in the rst place. 41. In cross – examination, he stated that he had not bought an acre together with his brothers as a family; and that he used the whole property of Mr Mutai as it was not fenced but he did not know of the dispute since he left in 1992. 42. In re-examination the witnesses started that he did not know what the decision of the elders was in relation to the dispute. He stated that he his brother’s did not show any proof that they had bought the property and later on sold it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 4

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43. At the interlocutory stage while the suit was pending and after delivery of the ruling dated 14/2/2022 the Court allowed the Defendant to access the disputed property and a joint survey be done and the survey report to be led in the matter. 44. The survey was conducted and a surveyor report dated June 21, 2022, and the close of the respective cases parties were directed to le submissions on the survey report. 45. After close of the respective cases, parties were directed to le written submissions on the case. 46. Whereas the Plainti led his submissions on the case as well as the survey report, the Defendant did not le its written submissions despite the record showing that they were requested for a week on October 26, 2022 when the matter was mentioned having not led by the given timeline and allowed to le submissions by close of business on 3/11/2022. 47. The Plainti’s submission have not identied any issue for determination and as the Defendant has not led her submissions, it now behoves the Court to frame the issues for determination. Upon analysis of the pleadings, the evidence and the submissions on record, the court frames the following as issues for determination. i. Whether the Plainti purchased 1 acre from the 2nd Defendant and an additional second acre from Samuel Kimagut Mutai. ii. Whether the Plainti has trespassed on the 2 acres as claimed by the Defendant iii. If answer to (i) above is in the armative has the Plainti proved the elements of adverse possession. iv. If answer to (ii) above is in the armative, have the Defendants proved their defence. v. Who bears the costs of the suit? Analysis And Determiantion: 48. In answer to issue number 1 as to whether the Plainti purchased 1 acre from the 2nd Defendant and another from the late Samuel Kimagut Mutai, the Plainti produced as P Exhibit 3, an agreement for sale dated 25/9/1993, the contents of the agreement, were corroborated by PW5, a retired villager elder who authored the agreement dated 25/9/1993, which was between the late Samuel Kimagut Mutai, and it related to one acre sold at a consideration of kshs 33,000/=, in Nandi/Kebulonik/344. 49. There is thus evidence on record to support the Plaintis claim of purchase of one acre in Nandi/ Kebulonik/344 from the late Samuel Kimagut Mutai, the husband of the 1st Defendant in 1993. 50. It was the Plainti’s further evidence that he purchased one acre from the 2nd Defendant who had purchased the same from the late Samuel Kimagut Mutai, in support of this, the Plainti produced as P Exhibit 1 and P Exhibit 2, an application for LCB consent and a consent letter for subdivision. It was his testimony that 2nd Defendant had bought from the late Samuel Kimagut Mutai, and it is the late Samuel Mutai, who gave him P Exhibit 1 and 2 so as to lodge for the subdivision. 51. The evidence for the purchase from Benjamin Tanui was corroborated by PW3, who indicated that he initially bought grass for thatching of his house from Benjamin Tanui from the said parcel, but later on bought from the Plainti after Tanui sold the same to the Plainti. 52. Was PW3’s evidence in cross examination that the 1 acre had been fenced at the time he bought the grass and that in a lease it was possible to fence a eased property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 5

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53. This evidence was corroborated by PW6 John Kimeli Tanui, the 2nd Defendant’s brother; who narrated on how in 1990 as a family they had bought 1 acre from the late Samuel Kimagut Mutai and left the property, to their brother the 2nd Defendant, who later sold it in 1992 with their blessings to the Plainti. 54. From the evidence as summarised above, the court nds that the Plainti bought one acre of land from the 2nd Defendant in 1992 and an additional acre of land from the late Samuel Kimagut Mutai in 1993. 55. Thus in answer to issue number 1 the Plainti has proven purchase of the two acres, in Nandi/ Kebulonik/344 one acre each from the late Samuel Kimagut Mutai and the 2nd Defendant and issue number 1 above is answered in the armative. 56. On issue number 2, whether the Plainti has trespassed on the two acres belonging to the Defendant. The rst Defendant through her Advocate sought for a survey to be done, and a survey report was led in Court. Parties were directed to le their submissions on the suit and the survey report. Whilst the Plainti submitted on the same, the Defendant did not le their submissions. 57. In the survey report, the surveyor Mr. Evans Osiocha from the County Surveyors Ocer, observed that the Plainti was in occupation of the 2 acres in dispute having fenced o the said portion using posts and barbed wire, the fence he had planted blue gums in single line surrounding the parcel of land. The photographs exhibited by the Plainti equally show mature trees in a single line, consistent with the ndings in the survey report and the evidence of PW2, equally lends weight to the ndings of the survey report, that the Plainti has been in occupation of the disputed property since 1992, when he bought. On the sketch map annexed to the survey report an access road is equally shown from the boundary of the property. 58. From the evidence above, there is no evidence to support the claim of trespass by the Defendant as in cross – examination the 1st Defendant on being shown the photographs conceded that the blue gum trees were on the property of the Plainti which formed part of the 5 acres he had initially purchased, and form part of Nandi/Kebulonik/345, however the survey report indicated that the 2acres form part of Nandi/Kebulonik/344. 59. The Defendant did request the survey to be done but later abandoned the same. Having been led through an order of the court, the survey report is thus admitted as evidence under the provisions of order 18 rule 10 of the Civil Procedure Rules as read together with section 146 (4) of the Evidence Act. The parties were called upon to submit on the report and only the Plainti led his submissions on the report. 60. The Plainti submits that the survey report has actually indicated him as it shows that he is in occupation of the disputed 2 acres. 61. The court thus nds the claim by the defendant that the plainti has trespassed on her parcel of land is not supported by evidence and has not proven and it fails. 62. The Court shall now examine and determine issue number 3, whether the Plainti has proven the ingredients of adverse possession; of the 2 acres in Nandi/Kebulonik/344. 63. The Plainti in his submissions has cited the decision in the case of Nathaniel Kibet Chepkerer v Francis Kiprop Chepkurui and another [2022] eKLR wherein the ingredients to be proven. On a claim of adverse possession were restated, which are that the claimant must have been in exclusive possession of the land, openly and as of right and without interruption for 12 years after dispossessing the owner or by discontinuation of possession by the owner of his own violation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 6

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64. In the instant case, the entry on the two acres by the Plainti, was found to have been by way of purchase of 1 acre from the 2nd Defendant in or about 1992, and the purchase of the 2nd acre from the late Samuel Kimagut Tanui on or about 1993. In both cases, the property was subject to the Land Control Act, as was evidenced by P Exhibit number 1 and 2 being an application for LCB consent and LCB consent to subdivide. 65. The Plainti entry was thus initially as a purchaser whose permission was terminated by virtue of section 6 (1) of Land Control Act by virtue of the Agreement becoming void for lack of the LCB consent; after 6 months of the entry; as was held in the decision in the case of Miki Waweru v Jane Njeri Ruchu [2007] eKLR where the Court of Appeal held “in our view where a purchaser or lessee of land in a controlled transaction is permitted to be in possession of the land by the vendor or lessor pending completion and the transaction thereafter becomes void under section 6 (1) of the Land Control Act, for lack of a Land Control Board such permissions is terminated by operation of law and the continued possession if not illegal becomes adverse from the time the transaction become void.” 66. If follows therefrom that for purposes of time, that time started running on or about 1993 for the 1st acre and in 1994, for the other second acre, and time for adverse possession taking that time started running in 1994, crystallized in 2006; for both properties. 67. PW2, PW3, PW4, PW5 and PW6 all indicated that the Plainti has been in occupation of both acres which fact was further conrmed by the survey report as well as the photographs of mature tree and the 1st Defendant herself stated that they had been no dispute during the lifetime of her husband. The court nds the occupation since 1994 to date to have been more than 12 years in an open and continuous manner and is satised that the Plainti has proven adverse possession. 68. There is a requirement that a claimant for adverse possession must exhibit the abstract of title or copy of the register; as was stated in the decision in the case of Githi Mwangi & 4 others v Joseph Mwai Kabiru & 4 others. 69. In his evidence the plainti produced a copy of the green card (copy of register) in respect of Nandi/ Kebulonik/344, and therefore satised the said requirement. 70. On a balance of probabilities, the court is satised that the plainti has proven his case to warrant an entry of judgment in his favour. DISPOSITION: 71. 72. Accordingly, judgment is hereby entered in favour of the plainti as against the defendant in terms: i. That the defendants interest and title in respect of 2 acres in Nandi/Kebulonik/344 occupied by the plainti be and is hereby extinguished by virtue of section 17 of the Limitation of Actions Act. ii. The County Surveyor Nandi County to subdivide the 2 acres occupied by the plainti as captured in the survey report dated 21/6/2022. iii. A vesting order issues in favour of the plainti, vesting the 2 acres to be subdivided in (2) above and for the County Land Registrar to rectify the register by registering the Plainti as proprietor of the resultant two acres after subdivision is caused on Nandi/Kebulonik/344. iv. Each party shall bear its costs. Judgment accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 7

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DATED AT KAPSABET THIS 20TH DAY OF DECEMBER, 2022. Hon MN Mwanyale JUDGE. In the presence of; Dr. Chebii for the Plainti No appearance for Mr. Rotich for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15507/eng@2022-12-20 8

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