Shiramba v Sakayo & another

in acts of wanton destruction of her property and using the police to harass her and her family and even having her son charged in court. 4. The second respondent opposed the originating summons through a replying adavit sworn on 28th December 2018 wherein he deposed that he was the registered owner of the suit property which he acquired for valuable consideration from the rst respondent who was the previous registered proprietor. He denied the applicant’s allegations and added that the applicant had made several complaints to various oces but had failed to attend whenever summoned to meetings. He deposed that the applicant is a trespasser and counterclaimed for her eviction and a permanent injunction to restrain her, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the suit property. 5. The OS was heard by way of viva voce evidence. 6. At the hearing, the plainti/applicant adopted her aforesaid supporting adavit as evidence. She further testied that her husband passed way in 1978 and was buried elsewhere in Lirhanda at his mother’s home. The plainti’s case was then closed. 7. The second respondent/defendant testied as DW1 and adopted his witness statement as his evidence. He stated in the statement that he purchased the suit property from the rst respondent on 5th April 2018 and that it was transferred to him, and he became the registered proprietor. That he took immediate possession and that the plainti had refused to vacate. He went on to state that he inspected the land prior to purchasing it and saw on it houses belonging to the plainti. He further conrmed that he had the plainti’s son charged with a criminal oence, but he was acquitted. That after that, he got the plainti and her son arrested again and charged with damaging his trees. He stated that the criminal case was ongoing as of the date of his testimony. 8. The rst respondent/defendant testied as DW2 and adopted his witness statement dated 3rd December 2019 as his evidence. He stated that he sold the suit property to the second respondent and transferred it to him. That he was residing on land parcel number Kakamega/Virembe/463 as of the date of his testimony and that the plainti’s late husband who was his younger brother was buried on his own land in Lirhanda. That the suit property was originally owned by his father who transferred it to him while still alive and that he later sold it to the second respondent. He further stated that when the plainti’s husband passed away, she moved with her children from the land where her husband was buried since she had separated from her husband. That he allowed her to occupy the suit property since he did not want them to suer and added that she was only to remain on the suit property long enough to raise her children and that she was to return to her land once her children became of age. He went on to state that the plainti has buried two of her children on the suit property and that the plainti’s late husband built for the plainti a small house on the suit property. That the plainti could not live on land parcel number Kakamega/Virembe/463 because she slapped their mother (her mother in law). 9. Other defence witnesses were Hudson Manyengo Ilusa (DW3) and Margarita Khasungu Lijodi (DW4). DW3 stated that the plainti’s late husband was his father’s younger brother and that the plainti had lived on the suit property for 40 years. That the plainti should go live on land parcel number Kakamega/Virembe/463 where her husband had a share. DW4 stated that the rst respondent is her husband and reiterated that he sold the suit property to the second respondent. 10. The defence case was then closed. Parties thereafter led and exchanged written submissions. I have considered the parties’ respective pleadings, evidence, and submissions. The issues that arise for determination are whether adverse possession has been established and whether the reliefs sought should issue. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21161/eng@2023-10-31 2

page 2 of 4

11. The law on adverse possession is settled. As the Court of Appeal stated in Richard Wefwafwa Songoi v Ben Munyifwa Songoi [2020] eKLR, the party claiming adverse possession must assert hostile title in denial of the title of the registered proprietor. The process must start with a wrongful dispossession of the rightful owner and the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. The party who claims adverse possession must demonstrate the date he came into possession, the nature of his possession, whether the fact of his possession was known to the registered proprietor and that the possession was open and undisturbed for the requisite 12 years. 12. There is no dispute that the second defendant is the registered proprietor of the suit property. That much is apparent from the copy of the title deed dated 27th July 2018 and the certicate of ocial search dated 12th October 2018. The previous registered proprietor was the rst respondent. 13. The plainti’s case is that she entered the suit property in 1973 following an exchange between her late husband and the rst respondent. Thus, her entry into the suit property was by permission of the rst respondent who was then the registered proprietor. Possession by licence of the proprietor is antithetical to the doctrine of adverse possession. For time to start running in favour of the party claiming adverse possession following entry by permission of the proprietor, the claimant must demonstrate the point in time at which she started to assert hostile title in denial of the title of the registered proprietor. 14. Although there is no dispute that the plainti has had possession for 40 years, it must be reiterated that the proper way of assessing proof of adverse possession is whether the title holder has been dispossessed or has discontinued his possession for the statutory period of 12 years, as opposed to whether the claimant has proved that he or she has been in possession for 12 years. In view of the manner in which she entered the suit property, the plainti did not prove that she had dispossessed the defendants or that the defendants had discontinued possession for the statutory period of 12 years. In fact, she did not oer any evidence to prove that the exchange was completed, and that the rst respondent became the registered proprietor of the land that her deceased husband oered in the exchange. For purposes of adverse possession, an exchange is similar to a sale transaction. Time will only start running in favour of the plainti from the moment of registration of transfer of the exchanged property in favour of the defendant. That is the point at which her possession and occupation of the property ceases to be by permission of the registered proprietor. As the Court of Appeal emphasised in Samuel Kihamba v Mary Mbaisi [2015] eKLR, occupation of land by consent or license does not accrue any right of adverse possession. Consequently, the plainti has failed to establish adverse possession. She is not entitled to the reliefs that she sought. 15. The second defendant included a counterclaim at paragraphs 14 to 16 of his replying adavit. He prayed for judgment against the plainti for her eviction and a permanent injunction to restrain her, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the suit property. 16. As noted earlier, there is no dispute that the second defendant is the registered proprietor of the suit property. A registered proprietor of land is entitled to the rights, privileges, and benets under Article 40 of the Constitution of Kenya 2010 and Section 24 of the Land Registration Act. Among other rights, he is entitled to possession of the suit property and peaceful use thereof. Consequently, the reliefs of eviction and permanent injunction are merited. 17. As I conclude, I note that the plainti and the rst defendant are close relatives. The plainti is his sister in law. There is no dispute that the plainti’s late husband had a share in land parcel number https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21161/eng@2023-10-31 3

page 3 of 4

Kakamega/Virembe/463. The plainti and the rst defendant, and indeed the wider extended family should foster peaceful family coexistence. Notwithstanding any challenges that exist, and challenges are normal in families, the plainti should be allowed to settle in her husband’s share of land parcel number Kakamega/Virembe/463. Needless to state, the family should endeavour to lawfully resolve any issues of succession in regard to land parcel number Kakamega/Virembe/463 before the appropriate court with jurisdiction in the matter. 18. In view of the foregoing, I make the following orders: a. The plainti/applicant’s case is dismissed. b. The plainti to vacate from the parcel of land known as Kakamega/Virembe/526 within 90 (ninety) days from the date of delivery of this judgment. In default, an eviction order shall automatically issue. c. A permanent injunction is hereby issued to restrain the plainti, her agents, assigns or personal representatives from entering, working, interfering with and/or in any other way dealing with the parcel of land known as Kakamega/Virembe/526. d. The injunction in (c) above will come into operation within 90 (ninety) days from the date of delivery of this judgment or upon the plainti vacating, whichever occurs earlier. e. Considering the relationship between the parties, I make no order as to costs. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 31ST DAY OF OCTOBER 2023. D. O. OHUNGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21161/eng@2023-10-31 4

page 4 of 4