Riungu v Kirubua & another

No. 61 of 2018. The plainti avers that he has led this suit following advice from his advocate that this is the court empowered by law to hear and determine the plainti’s claim for adverse possession pursuant to section 38 (1) of the Limitation of Actions Act. 4. The plainti testied as P.W 1 and relied on facts in his adavit and called one witness. The plainti produced a copy of the green card and the photographs as P exhibits 1 and 2 in support of his claim. He testied that he did not know the defendants until when they led Meru CMC ELC No. 61 of 2018. His testimony was that he was born on the suit land where he has put up a semi-permanent house and denied being a trespasser. 5. When the plainti was cross-examined by Mr. Ringera, learned counsel for the defendants he stated that the land is ¼ of an acre where he has put up a temporary structure where he lives and rears chicken, and that he has planted some crops which, however he had plugged out. He testied that the suit land belonged to his father Joseph M’Ngiti Mugambi and that is where he was born. He stated that he was not aware that the land was rst registered in 1975 and whether his father sold it in the year 1980. He further stated that he was aware that there were other two parcels of land that had been sold, though the plainti argued that his father was conned. The plainti stated that he lives in his father’s house together with his sister. 6. Solomon Bundi Rintari testied as P.W 2 and adopted his statement dated 11th November, 2022 as his evidence in chief and was cross examined and re-examined. His evidence mirrored that of the plainti. Defendants’ Case. 7. The defendants admit that they are the registered owners of the suit property which they claimed they purchased from one Julius Kirimi Maingi and one Albert Murungi M’Ndegwa. They averred that before purchasing the land, they carried out due diligence and that they were to take vacant possession on completion of the sale. The defendants aver that when the plainti trespassed on the land, they instituted Meru CMC ELC No. 61 of 2018 seeking eviction. 8. It is the defendants’ case that the plainti has purposely put up a semi-permanent building on the land with the intention of staking a claim thereto. The defendants believe that the plainti has not established a case against them and pray that the plainti’s suit be dismissed with costs. 9. Henry Muriira Kirubua, the 1st defendant testied on behalf of the defendants as D.w 1. He relied on his replying adavit as his evidence in chief. He testied that the plainti has over 3 semi-permanent houses on the suit land as shown in the photographs. He urged the court to order the plainti to give them vacant possession of the land. 10. When D.w 1 was cross-examined by Ms Kiyuki, learned counsel for the plainti, the 1st defendant stated that they bought the suit land measuring 0.1740 Hectares from Julius Kirimi Maingi and Albert Murungi M’Ndegwa (both deceased) in the year 2005, but stated that he had not brought the agreement for sale before court. D.w 1 testied that they have the title deed for the suit property. The 1st defendant testied that in Meru CMC ELC no. 61 of 2018, they have pleaded that the plainti was illegally in possession of part of the suit land and prayed for his eviction. He further stated that they had never used the land from the time they bought it. That they led ELC NO. 61 of 2018 seeking to evict the plainti which is a period of over 13 years from the time they purchased the land. He admitted that there are trees and some crops on the land that were planted by the plainti. He stated that the people they bought the land from had purchased it from Ngethi M’Ngethi. 11. When the 1st defendant was re-examined by Mr. Ringera, he stated that the people who sold them the land have never complained. That in the year 2018, they wanted to go and use and develop the land, https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21719/eng@2023-11-23 2

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but they found the plainti in possession. He denied that the plainti was in possession at the time they purchased the land. Plainti ’s Submissions 12. In their submissions dated and led on 14th September, 2023, M/s John Muthomi & Company Advocates for the plainti submitted that on the evidence tendered by the parties herein it is not in dispute that by the time the plainti led the instant suit on 16th January, 2020, he had been in occupation of the suit land for over 12 years since the defendants became the registered owners on 19th March 2005 as per P exhibit 1 and still remains in occupation. Further that by the time the defendants led Meru CM ELC Case No. 61 of 2018 on 26th March 2018 seeking for eviction, the plainti had been in occupation of the suit land for over 13 years from the date the defendants became the registered owners on 19th March 2005. 13. Counsel for the plainti submitted that the defendants’ inactivity to evict the plainti before the lapse of the statutory period are actions which are inconsistent with their enjoyment of the suit land for its intended purpose. That the plainti’s possession of the suit land is admitted by the defendants in paragraphs 4 and 5 of the plaint dated 26th March 2018 in Meru CM case no. 61 of 2018 and in the 1st defendant’s replying adavit dated 21st July, 2022. They submitted that this is evidence that the defendants had the full knowledge that the plainti was in exclusive possession of the suit land and his occupation was open. Counsel for the plainti submitted that the plainti has proved that he has acquired the suit land by demonstrating that his occupation and possession has been exclusive, open, continuous and uninterrupted for the prescribed period of more than 12 years and urged the court to enter judgment in his favour. They also seek that the defendants be ordered to bear the costs of the suit and interest thereon. 14. The plainti’s advocates relied on the case of Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] eKLR and Ramco Investment Limited v Uni-Drive Theatre Limited [2018] eKLR. Defendants’ Submissions 15. In their submissions dated 27th September, 2023, M/s Gatari Ringera & Company Advocates for the defendants submitted that for the plainti to succeed in his claim for adverse possession he must establish that the entry is neither by force nor under the licence of the owner, that there has been exclusive and open possession of a dened portion of land by the adverse possessor and the dispossession of the owner or discontinuation of possession by the owner on his possession. 16. Learned counsel for the defendants submitted that the plainti readily admits that his possession of the land stems from his relationship as a son of a previous registered owner. That however, the plainti does not state his actual date of entry into the land and submitted that it is not open to the court to guess when the alleged entry into the suit land happened and that his claim should fail on this ground alone. That the plainti merely states that he was born and brought up on the land. That it is inconceivable that the plainti would stake a claim for adverse possession against his father dated back to his date of birth that was never disclosed. 17. It is further submitted that the evidence on record shows that ownership of the land changed from the plainti’s father on 5th November, 1987. That there was a subsequent change in ownership on 19th March 2005 and the plainti was silent on all these changes and what actions, if any, he took to protect his alleged interest in the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21719/eng@2023-11-23 3

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18. The defendants’ advocate further submitted that the plainti’s failure to demonstrate that they had been in occupation of a dened portion of the land for the requisite period is fatal to this claim and relied on Maroa Maroa Nyamboha v Charles Onyancha [2019] eKLR. 19. It is further submitted that there is no evidence that the plainti dispossessed the owners or that the owners discontinued their possession of the land. That the evidence on record shows that the plainti remained a trespasser in the defendants’ eyes and that they took legal steps to evict him from their land. It is the defendants’ submission that the plainti has failed to prove his case to the required standards and urged the court to dismiss the same with costs. Analysis and Determination 20. The court has carefully considered the pleadings, the evidence adduced and the submissions led. I have also taken into account the legal authorities cited. The issues for determination are whether the plainti has proved his claim for adverse possession and whether the defendants have proved their claim for eviction and what reliefs should be granted. I will discuss these issues together. 21. In deciding whether or not the plainti has proved his claim for adverse possession to the required standard, the plainti must prove on a balance of probabilities that he has been in occupation of the suit land for a period exceeding 12 years, that such occupation was open, peaceful, and continuous without interruption from the registered owners and that such occupation was adverse or inconsistent with the right of the registered owners. This is in line with the established principles and requirements for a claim for adverse possession as discussed by the courts. 22. The doctrine of adverse possession is embodied in section 7 of the Limitation of Actions Act which provides that-; “ 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.” 23. 24. Section 13 of the same Act provides that-; “ (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 8, 10,11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that 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 accrued 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 possession of the land.” Section 17 of the same Act provides that-; “ Subject to section 18 of this Act at the expiration of the period prescribed by this Act for a person to bring an action to recover land (including a redemption action) the title of that person to the land is extinguished.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21719/eng@2023-11-23 4

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25. In addition, Section 38 (1) of the same Act provides that: “ (1) 26. 27. where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of 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.” Similarly, order 37 rule 7 of the Civil Procedure Rules provides as follows; “ (1) an application under Section 38 of the Limitation of Actions Act shall be made by originating summons. (2) The summons shall be supported by an adavit to which a certied extract of the title to the land in question has been annexed. (3) The court shall direct on whom and in what manner the summons shall be served.” In the case of Mtana Lewa v Kahindi Ngala Mwangandi (supra) the Court of Appeal stated as follows-; “ Adverse possession is essentially a situation where a person takes possession of land and asserts rights 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 by the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force nor stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.” 28. In this case, it is not in dispute that the defendants are the registered owners of the suit land. The plainti readily admits that his possession of the land stems from his relationship as a son of the previous registered owner thereof, one Ngiti Mugambi (deceased) who appears to have sold the same to some other person. The evidence on record indicates that the defendants purchased the land from Julius Kirimi Maingi and Albert Murungi M’Ndegwa and title issued in the names of the defendants on 19th March 2005. 29. It is the plainti’s case that he was born and brought up on the suit land and that even after the land changed hands, the defendants never took steps to evict him from the land until they led CMC Case No 61 of 2018. From the year 2005 upto the year 2018, that is a period of about 13 years. Section 7 of the Limitation of Actions Act is clear that 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. In this case, the right of action accrued to the defendants on 19th March 2005 when the land was registered in their names and title issued. From the evidence on record, the defendants never took steps to have the plainti evicted from the land before the expiry of twelve years. The defendants claim for eviction in CMCC No. 61 of 2018 is in my view, statute barred since it was led 13 years from the date the right of action accrued to them. The defendants’ inactivity to evict the plainti upon purchasing the land and before the lapse of the statutory period of twelve years means their suit No 61 of 2018 is barred by limitation, and their title has been extinguished and their case must therefore fail. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21719/eng@2023-11-23 5

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30. In this case, the plainti’s possession of the suit land is admitted by the defendants. Indeed, the defendants have led a claim against the plainti for eviction, but which claim has failed. The plainti has tendered evidence that has not been challenged or controverted by the defendants. If anything, the defendants’ own evidence support the plainti’s case that he has been using the suit land without sharing control with the defendants or anyone else for a period exceeding twelve years. The plainti has been using the land at the exclusion of the defendants who are the actual registered owner since the year 2005. Having purchased the land in the year 2005, the defendants had the full knowledge that the plainti was in exclusive possession of the land and his occupation was open and continuous. 31. From the evidence on record, I nd and hold that the plainti has proved that he has acquired the defendants land parcel No Ntima/Ntakira/1910 by adverse possession after demonstrating that his occupation and possession has been exclusive, open, continuous and uninterrupted for the prescribed period of more than 12 years. From the material presented before this court, I nd that the plainti has on a balance of probabilities proved his case. I nd that all the questions for determination in the originating summons dated 15th January, 2020 are in the armative. I enter judgment as follows-; 32. a. The plainti is hereby declared to have become entitled to land parcel Number Ntima/ Ntakira/1910 by virtue of adverse possession and is entitled to be duly registered as proprietor thereof. b. The defendants right over the suit land has been extinguished and their case is dismissed. c. Costs of the suit are awarded to the plainti as against the defendants. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 23RD DAY OF NOVEMBER, 2023 C.K YANO JUDGE In The Presence Of Court assistant V. Kiragu/Lena M J. Muthomi for plainti Gatari Ringera for defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21719/eng@2023-11-23 6

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