Bwana v Mamboleo & another

of the resultant sub-division thereof, measuring 3.5 Acres out of the suit property in the name of the Plainti. 4. In the alternative and without prejudice to prayer 3 hereof, the Deputy Registrar/Executive Ocer of the Honourable court be mandated and/or authorize to execute the relevant Transfer Instrument/Documents, inter alia, Application for Land Control Board consent, Mutation and Transfer touching on and/or concerning the suit Property, to facilitate the sub-division thereof and consequential transfer of the resultant portion in favour of the Plainti. 5. There be granted an order of Permanent Injunction, restraining the Defendants by themselves, agents, servant and/or employees from interfering with the Plainti’s peaceful possession and occupation of the portion measuring 3.5 acres currently falling and/or comprising part of the suit property and any portion, in any manner whatsoever and howsoever. 6. Costs of this originating summons be borne by the Defendants. 7. Such further and/or other orders be made as the court may deem t and expedient, in the circumstances of this case. He grounded the Summons with the following: 2 a. The suit property herein, was hitherto part and parcel of LR No Mwongori Settlement Scheme/34, (hereinafter referred to as the original parcel of land) now sub-divided. b. In any event, the original parcel of land belonged to and was registered in the name of Sabina Obonyo Magare, now deceased. c. Prior to and/or before the death of the Deceased, same entered into land sale agreement, whereby same sold to and in favour of the Plainti tow portions out of the original parcel of land. d. Firstly, the Deceased sold to and placed the Plainti in occupation of a portion measuring 50 ft by 100 ft on the 16th day of January 1980. e. Secondly, the Deceased sold to and placed the Plainti in occupation of a portion measuring 3¼ Acres in the year 1986. f. The two portions of land, (details in terms of paragraphs (d) and (e) hereof), adjoined and/or border one another. g. In any event, upon the purchase and/or acquisitions of the two portions, the Plainti fenced same and commenced occupation and use thereof. and a Supporting Adavit sworn on the same date. The Defendant led a Replying Adavit on 10/3/2021 and a written statement of Defence dated 8/3/2021 and led on 11/3/2021. The 2nd Defendant led his Replying Adavit on 27/4/2021. On 11/5/2021 after a successful Application by the Plainti, the parties consented that the Originating Summons and its Supporting Adavit as well as the Replying Adavit of the 1st Defendant be converted into Plaint and Defence respectively and that the suit be disposed of by way of Viva Voce evidence. Parties were also directed to exchange written statements and bundles of documents they wanted to rely upon in the case. The case proceeded ex parte for Hearing on 19/1/2021 but before Judgment was pronounced, the Defendant arrested it and requested that the case be heard de novo. A consent to that eect was recorded on 22/4/2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 2

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3 The Plainti testied that he rst bought what was originally LR. No. Mwongori Settlement Scheme/34 100 by 50 feet from one Sabina Obonyo Magare on 16/1/1980 at Kshs. 4,500 and later bought 3.3. Acres from the same person out of the same land in November 1986 at Kshs. 250,000/=. The 2 parcels of land border each other. The Vendor, Sabina later died in March 1993. 4 Unfortunately, the Defendants, Sabina’s children took out letters of administration in respect to Sabina’s Estate and transferred the entire land Mwongori Settlement Scheme/34 to themselves through transmission. 5 The Plainti has been on the suit land since 1980 which he has extensively developed by putting a fence all around it, planted bananas and eucalyptus trees and also put up 4 permanent houses. He therefore claims 3½ Acres where he has lived for over 40 years now. The 2 parcels. It was also asserted that the Deceased also sold other portions of L.R. No. MWongori Settlement SchemE/34 to other purchasers. The parcel of land has since been sub-divided into L.R. No. Mwongori Settlement Scheme/146 and 147 respectively and L.R. No. Mwongori Settlement Scheme/146 is now registered in the joint names of the Defendants. This is where the Plainti occupies part of. It is the Plainti’s evidence that he has occupied part of Mwongori Settlement Scheme/146 for over 40 years, openly, uninterruptedly, quietly and with the Defendant’s knowledge and therefore the Defendants’ right to recover or reclaim it have been extinguished under the limitations of Actions Act since the Plainti has adversely acquired prescriptive rights over the said 3½ (3.5) Acres. The Plainti produced a copy of the Sale Agreement dated 16/1/1980 between the late Sabina and himself in respect of the sale of the 50 by 100 feet of plot No. 34 Mwongori Settlement Scheme and copies of pleadings in the Principal Magistrate court at Keroka being ELC Suit No. 28 of 2020 between Samuel, the 1st Defendant herein as Plainti and the Plainti as the Defendant but it is not clear what became of the case. 6 He also produced a copy of the Green Card in respect to Mwongori Settlement Scheme/34 showing Sabina Obonyo Magare to have been the owner of the land with eect from 30/3/1987 and that the said land Register was closed on 3/4/1987 on sub-division of the land with new Titles 146 and 147 resulting therefrom. On cross-examinations, the 1st Defendant Mr. Bwana said that he did not have any sale agreement in respect of the 2nd agreement. 7 On cross examination by Mr. Maroko for the 2nd Defendant, Mr. Bwana said that Sabina died in 1993 having promised and assured him that she was going to get her the Title Deed for the 3½ Acres but that was not done due to her poor health. 8 The 2nd witness, John Ombuna Ogwaro, a retired chief of Mekenene Location said he knew all the parties to this suit as well as the late Sabina. He said he was aware of the land transaction between the late Sabina and the Plainti and the fact that the Plainti had extensively developed the land which he says is about 3 Acres but can’t tell the exact acreage. The 50 X 100 feet is next to the road where the houses are built. He testied that by the time he was posted to the location in February 1990, the Plainti was already settled on the suit land and when he left in 2006, the Plainti and his family were still on the suit land. On cross-examination by the 1st Defendant, the witness said that he has never come across any sale documents between Sabina and the Plainti. 9 When answering questions from Mr. Maroko for the 2nd Defendant, Mr. Ogwaro said that nobody among the parties herein ever brought any complaint to his oce for all the 17 years he served the location and that they co-existed peacefully but he was not certain of the acreage occupied by the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 3

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10 Joel Nyamora Ondieki, the 3rd Plainti witness testied that in 1986, the late Sabina, Defendant’s mother called him and asked him to help her curve out 3 Acres out of the suit land which he did with the understanding that the same was being curved out for the Plainti. 11 Both Vendor and Purchaser were present during this exercise. He wound up his evidence by maintaining that immediately after curving out the 3½ Acres out of Mwongori Settlement Scheme/34 the Plainti took possession, fenced all round it and commenced developing it and has all along been living thereon. On cross-examination by the 1st Defendant, Mr. Ondieki told the 1st Defendant that even his (Mamboleo’s) 3 paternal uncles were present during the exercise of handing over the parcel of land to the Plainti and on cross-examination from Mr. Maroko for the 2nd Defendant, Mr. Ondieki said that although he is not a qualied surveyor, he curved out the land in 1986. He said that when excising the 3½ Acres of land from Mwongori Settlement Scheme/34 the late Sabina’s husband was present but was not actively involved since the land was registered in the name of Sabina. On reexamination, he said that his role was to help the parties excise 3½ Acres of land from Mwongori Settlement Scheme/34 out of the suit land for the same to be taken possession of by the Plainti and which he witnessed happen. 12 After the close of the Plainti’s case, the 1st Defendant gave evidence to the eect that it is true that the Plainti bought part of the suit land i.e. 50X100 feet from his late mother, Sabina Obonyo in 1980. Nobody has told him to move out of the same. But that he never bought 3½ Acres. 13 On cross-examination by Mr. Maroko for the 2nd Defendant, Mr. Mamboleo said that it was the Plainti who sued him in Keroka P.M.C.C. ELC No. 28 of 2020 and that there is no development on the 3½ Acres out of Mwongori Settlement Scheme/146. On cross-examination by Mr. Otieno for the Plainti, the 1st Defendant said that he had no problem with the Plainti having the 50X100 feet. 14 Intriguingly, the witness disowned his Advocate Mr. Aoga who led a case on his behalf in Keroka PMCC No. ELC 28 of 2020. He said that he was seeing him for the rst time in this court. And that the Advocate wrote his own things. He also admitted that the Plainti has planted trees on the disputed land which he cannot harvest because they are not yet mature. While answering questions from the court, Mr. Mamboleo said that the Plainti has planted trees all around the 3½ Acres in dispute which he cannot cut since they belong to the Plainti and that the 3½ Acres were no other vegetation. 15 The 2nd Defendant testied that the Plainti occupies only 50X100 feet out of the L.R. No. Mwongori Settlement Scheme /146 and has not put up anything thereon. But he planted trees there when the 2nd Defendant was in jail having been convicted for robbery with violence. This is about 50 metres from where the 2nd Defendant occupies. 16 The 2nd Defendant in order to support his case produced a copy of the agreement dated 16/1/1980 between the Plainti and his late mother Sabina, a copy of the Title Deed and ocial search in respect of Mwongori Settlement Scheme/146 in the name of Sabina and the Defendants respectively and a copy of the minutes over Mwongori Settlement Scheme land dispute dated 14/11/1985. 17 On cross-examination from Mr. Otieno for the Plainti, Mr. Mogere said that the Plainti bought 50 by 100 feet from his mother in 1980 but that he was not present and was very young. He said that the Plainti occupies more than 50 by 100 feet where he has planted trees but he can’t tell the number of acreage. He said that he has never led any suit against the Plainti anywhere in any court. 18 On re-examination by Mr. Maroko, the 2nd Defendant said that the Plainti has put up a sh Aquarium since 2014/2015 outside the 50 by 100 feet. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 4

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19 The 2nd Defendant’s witness, Mr. Yabesh Ogeto Ayiera, the current Senior Chief of Mekenene location where he has served since 2008 said he knows the parties herein and that the Plainti has only developed 50 by 100 feet out of the suit land. 20 On cross-examination by Mr. Otieno he said he has known the parties in this case for over 30 years and that the Defendant has also refused to transfer to other people land that their late mother had sold to them. He said that the Plainti has only planted 3 to 4 trees on the 50 by 100 feet. The entire land is about 80 Acres and that there is no dam or sh aquarium on the land. Finally, he said that the Plainti does not occupy more than 50 by 100 feet. 21 On re-examination the witness said that there is a well behind the Plainti’s house which is on a 100 by 50 feet. He said he has never seen a sh pond on the suit land. 22 After the close of the Defendant’s case, I invited the parties to le their written submissions which I have carefully considered. 23 I must point out the point of convergence which is that there is no dispute as to whether the Plainti bought 50 by 100 feet out of Mwongori Settlement Scheme/34 which is now Mwongori Settlement Scheme/146. We therefore need not go into any examination on that piece of land. What is in dispute is the balance of 3½ Acres after deducting the 50 by 100 feet, 3.3 Acres. 24 The 2nd Defendant is in agreement that what the Plainti occupies is more than 50 by 100 feet. He said he can’t tell the exact acreage but that the same cannot be 3½ Acres. He further says that the Plainti has planted trees all over the portion of land he claims. He says that he was very young when his mother was selling the land to the Plainti and could therefore not have followed what was happening. Likewise, the 1st Defendant testied that the Plainti has planted trees all around the 3½ Acres he now claims. He also admits that the Plainti has had a sh pond outside the 50 by 100 feet since 2014/2015 where he has been doing sh farming. The 2nd Defendant’s witness, Senior Chief Yabesh Ogeto Ayiera came and contradicted the above evidence. In the rst place, he said that the Plainti has developed only 50 by 100 feet and in cross-examination by Mr. Otieno for the Plainti put more emphasis “and no more”. Secondly, whereas the Defendants agree that the Plainti has planted trees all around the 3½ Acres in dispute, the Senior Chief testied that the Plainti has only planted 3 to 4 trees within the 50 by 100 feet. I wonder how only 3 to 4 trees can be said to be surrounding 50 by 100 feet. He also categorically said that there is no sh pond in the area in dispute and that the Plainti does not occupy more than 50 by 100 feet. This is a person who has served the area since 2008 and testied that he was called upon to help the parties settle the feud and even went to the land and that he has known the parties for over 30 years. The Senior Chief to me is not truthful and came to court to aid the Defendants but ended up contradicting their evidence so blatantly. I therefore nd him to be a very unreliable and dishonest witness. 25 I also nd it strange that the 1st Defendant, Samwel Mogaka Mamboleo claims that it is the Plainti who led Keroka PMCC ELC No. 28 of 2020 when in fact documents produced in Court show that he was the Plainti. He even disowns the Advocate who led his statement in the case and said that the Advocate did so without instructions. He said that what is contained in the pleadings of the case which was led on 9/9/2020 is untrue and that his Advocate Mr. Aoga “wrote his own things”. This is in spite of the Verifying Adavit in the Keroka case bearing Mr. Mamboleo’s signature as the Plainti giving instructions in the said suit. I equally nd him to be very mendacious and dishonest. 26 From a careful perusal of the case, the evidence adduced, Parties’ submissions and the analysis made by the Court, the main legal issue arising for determination is: whether the 3.3 Acres out of L.R. No. Mwongori Settlement Scheme/34 could have been sold to the Plainti herein by the late Sabina. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 5

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The agreement was unwritten hence an egregious infraction of the statutory requirement as to sale agreements and it is crucial to examine whether such an agreement could confer any legal rights. 27 Section 38 (1) of the Land Act No. 6 of 2012 provides in essence that no suit shall be brought upon a contract for disposition of an interest in land unless the contract on which the suit is founded is in writing, is signed by all parties thereto and the signature of each party has been attested by a witness who was present when the contract was signed. 28 Likewise, the Law of Contract Act, Chapter 23 of the Laws of Kenya provides in Section 3 that: “ No suit shall be brought upon a contract for the disposition of an interest in land unless- 29 (a) the contract on which the suit is founded – (i) is in writing. (ii) is signed by all parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party. In Civil Appeal Number 22 of 2013, Peter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLR, the Court held; “ Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is in writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excludes the application of Section 3(3) of the said Act to contracts made before the commencement of the subsection. Section 3(3) of the Law of Contract Act, came into eect on 1st June, 2003. …. Prior to the amendment of Section 3(3) of the Law of Contract Act in 2003, the subsection read as follows: (3) No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it; Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract(1) Has in part performance of the contract taken possession of the property or any part thereof; or (11) Being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.” 30 The 2 conditions above must not be concurrent. They are ‘either’ ‘or’ and not ‘and’. 31 The Plainti and his family have been in possession of 50 by 100 feet on L.r. No. Mwongori Settlement Scheme/146, Previously L.r. No. Mwongori Settlement Scheme/34 since 1980 and 3.3 Acres of the same since November 1986. I believe the Defendants took advantage when they realized that their late mother, Sabina Obonyo Magare had not transferred the suit land to the Plainti by the time she died. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 6

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32 Notwithstanding the fact that the sale agreement made by the parties in November 1986 was not in writing, all that the Plainti had to do is to satisfy the court that he either took possession of the suit property in part performance of the said oral contract, or that being already in possession of the suit property, he continued in possession in part performance of the oral contract. Having re-evaluated the evidence, I nd that the Plainti proved that he and his family had actual and or constructive possession of the suit property since 1980 and 1986 respectively and the possession was open, continuous and uninterrupted. 33 I nd that the proviso to Section 3 (3) of the Law of Contract Act also applies in this case but even more importantly, Section 3 (3) of the Law of Contract Act came into eect in 2003 and does not apply to oral contracts for sale of land concluded before Section 3 (3) of the Act came into force and I hold that the sale agreement between the Plainti and the Defendants’ mother did not violate or oend the provisions of the Law of Contract Act. Even if there was no written sale agreement, the Plainti has satised the Court that he had taken possession of the suit land in part performance of the contract and has done some other act in furtherance of the contract, such as developing it. 34 This is also a claim based on adverse possession premised upon Section 17 and 38 of the Law of Limitations of Actions Act. Section 38 (1) of the Act provides: “ 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” 35 Section 28(h) of the new Land Registration Act, 2012 recognizes adverse possession as one of the overriding interests in land: “ Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and aect the same, without their being noted on the register:(h) 36 “rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription”. Similarly, Section 7 (d) of the new Land Act, 2012 provides as follows: “ Title to land may be acquired through – 37 a. ------------. b. ------------. c. ------------. d. prescription” In determining whether or not to declare that a party has acquired land by adverse possession, there are certain principles which must be met. It suces to refer to the case of Wambugu =vs= Njuguna (1983) K.L.R. p. 172 in which the court of Appeal held as follows: 1. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 7

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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. 38 2. 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. 3. Where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on subsequent adverse possession, the rule is: the claimant’s possession is deemed to have become adverse to that of the owner after the payment of the last installment of the purchase price. The claimant will succeed under adverse possession upon occupation for at least twelve years after such payment. In Kasuve VS Mwaani Investment Limited & Four Others 2004 1 K.L.R 184, the Court of Appeal restated what a plainti in a claim of adverse possession has to prove in the following terms: “ In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of the 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” 39 And it doesn’t matter that the land has since changed hands from the original owner, Sabina, to her descendants. In Githu Vs Ndeete 1984 K.L.R 776, the Court of Appeal held as follows: “ The mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession”. 40 The case of Githu Vs Ndeete (supra) is also authority that a party can claim only a portion of the land and not necessarily the whole land as long as possession of that portion is exclusive and it can be identied. It is obvious therefore that the portion of the suit land occupied by the Plainti is well dened by the development thereon and also it is fenced and identiable. 41 The Defendants and their witnesses seem to know nothing about the suit land hence the contradiction by their witnesses. I am not persuaded the Defendants’ evidence is well founded. On the ip side, I nd that the Plainti has proved his case on a balance of probabilities and consequently and I hereby enter judgement for the Plainti against the Defendants jointly and severally in the following terms: 1. A Declaration be and is hereby issued that the Defendants’ right to recover a portion measuring 3½ (3.5) Acres out of Lr. No. Mwongori Settlement Scheme/146 is barred under the Limitations of Actions Act cap 22 of Laws of Kenya, and his Title thereto extinguished. 2. The Plainti be registered as the Proprietor of the portion measuring 3½ (3.5) Acres out of LR. No. Mwongori Settlement Scheme/146 in place of the Defendants and the Register thereof https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 8

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be rectied to reect the Plainti as the lawful and legitimate owner of the portion measuring 3.5 Acres thereof. 42 3. The Defendants are hereby directed to execute the Application for Land Control Board consent, the Transfer documents and such other Transfer Instruments as may be necessary and appropriate to facilitate the sub-division of LR. No. Mwongori Settlement Scheme/146, transfer and registration of the resultant sub-division thereof, measuring 3.5 Acres out of the suit property in the name of the Plainti. 4. In the alternative and without prejudice to 3 above, the Deputy Registrar of this Court is hereby mandated and authorized to execute the relevant Transfer Instruments/Documents, inter alia, Application for Land Control Board consent, Mutation and Transfer touching on and concerning the suit Property, to facilitate the sub-division thereof and consequential transfer of the resultant portion in favour of the Plainti. 5. An order of Permanent Injunction restraining the Defendants by themselves, agents, servant and/or employees from interfering with the Plainti’s peaceful possession and occupation of the portion measuring 3.5 Acres currently falling and/or comprising part of LR. No. Mwongori Settlement Scheme/146 or any portion, in any manner whatsoever and howsoever. Costs follow the event and I therefore order that the Defendants pay the Plainti’s costs of this Suit. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 28TH DAY OF MARCH, 2023 MUGO KAMAU JUDGE In the Presence of: Sibota – Court Assistant Ms. Opondo for the Plainti 1st Defendant in person Mr. Maroko for the 2nd Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28 9

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