Kubai v Karimi

2. 3. 6. Have the defendants ever occupied the ¼ acre of the suit land where the plainti has had a constructed building. 7. Has the plainti’s building been demolished during the pendency of this suit in the month of December, 2020, in the pretext that he was a tenant? 8. Has the demolition aected the plainti’s claim of adverse possession? 9. Are the defendants holding ¼ acre of the suit land as trustees of the plainti from the time the plainti’s occupation became adverse? 10. Has the change in ownership of the suit land eected on 21st May 2020 aected the plainti’s quest for adverse possession? The plainti seeks for issuance of orders that-; 1. A declaration that James Taitumu Kubai the plainti herein has become entitled by way of adverse possession of ¼ acre of the parcel of land known as LR No Ntima/igoki/1227. 2. An order that the District Land Surveyor Meru Central District do visit the land parcel No Ntima/igoki/1227 and curve out ¼ acre thereof fronting the tarmac to Meru Maua Highway to be registered in the plainti’s names and the District Registrar do amend the register accordingly to reect the plainti as proprietor of ¼ acre thereof and issue a title deed in the names of James Taitumu Kubai while dispensing with the production of the original title deed. 3. Costs of this suit be borne by the defendants. The application is supported by the adavit of James Taitumu Kubai sworn on December 7, 2021 and June 21, 2021 and is premised on the grounds-; 1. That the plainti has been in exclusive, open and uninterrupted occupation of ¼ acre of land parcel No Ntima/igoki/1277 For a period of more than 12 years since 1993. 2. That the plainti has developed ¼ acres of the suit land. 3. That the plainti had been in occupation of ¼ acre of the suit land for more than 12 years. 4. That the eviction of the plainti during the pendency of this suit does not adversely aect his claim. 5. That the defendants are holding the title a ¼ acre thereof as trustees. 6. That the eviction of the plainti after occupying ¼ of an acre of the suit land for more than 12 years has not aected his claim for adverse possession as the defendants hold the land thereof as trustees. The Plainti ’s Case 4. The plainti has deposed that he occupied the suit land in the year 1993 and in 1996, he built a commercial building thereon in which he has over the years operated his business peacefully, notoriously, continuously and without hindrance by the defendants up until the ling of this suit in 2012. The plainti avers that the defendants evicted him from the suit land in December, 2020 in the pretext that he was a tenant and during the pendency of this suit and when an order of injunction was issued against them on November 5, 2012. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 2

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5. The plainti avers that the suit land belonged to one Justus Murithi Mbagiri (now deceased) at the time the plainti settled on the land, but has changed hands and is registered in the names of the defendants who are heirs to the estate of the deceased. It is the plainti’s contention that though he has been evicted, he has never been a tenant on the suit land and that he has acquired proprietary rights of ¼ of an acre of the suit land by way of adverse possession. 6. In the supporting adavit, the plainti has annexed copies of the order of injunction issued on November 5, 2012 a copy of the certicate of ocial search in the name of the deceased, a copy of the search certicates in names of the defendants and certicate of conrmation of a grant of letters of administration intestate in succession cause No 15 of 2007 issued to the 1st defendant. 7. During the hearing, the plainti testied as PW 1 and called three witnesses. He adopted averments in the adavits in support of the summons and his witness statement as his evidence in chief and produced the documents annexed thereto as P exhibits 1 – 49. He was cross examined and re-examined. 8. It was the plainti’s evidence that the late Justus M’Murithi was a friend of his father, Johana M’Imwendwa Mbaimwenda. That he came to know the deceased in 1991 when his father brought him to him for assistance over a land dispute with his brother, one Samson over the suit land. That he paid legal fees for the deceased and later became close friends. 9. The plainti further stated that the deceased sought his assistance over marital dispute between the deceased and his wife, the 1st defendant who had allegedly left the deceased in the year 1992. That the 1st defendant wanted the land sold so that the proceeds would go to educate the children. He stated that the deceased requested him to educate the children and to protect the land from being sold. He further stated that in 1994 he was brought divorce papers led by the 1st defendant in meru CMCC Divorce cause No 9 of 1994 which was however not nalized for one reason or another. Briey, it is the plainti’s evidence that he assisted Justus M’Murithi (deceased) supported his children and took possession and remained in the suit land to have it protected and which he is now claiming by way of adverse possession. He stated that he was put in the succession cause because of his interest in the land and nothing else. 10. 2 was Mwongela Solomon Mugwika who adopted his statement dated June 21, 2022 and testied that he was employed as a caretaker at the suit premises until the year 2020 when the plainti was evicted therefrom. He further stated that the plainti occupied the premises uninterrupted from the year 1999 up to the year 2020 when the premises were destroyed. He denied that the plainti was a tenant of the original registered owner, the late Justus M’Murithi (deceased). He however could not tell how the plainti entered the premises. 11. Zakayo Mwiti Joseph testied as PW 3 and adopted his statement dated June 21, 2022 as his evidence in chief. He stated that he rented a butchery on the suit premises from the plainti in the year 2000 and remained until the year 2009 when he left. He did not know how the plainti entered into the premises. 12. Pw 4 was Joseph Mwiti who adopted his witness statement dated June 21, 2022 as his evidence in chief. He stated that he was the area manager Mwithumwiru area and that he knew the plainti when he was building on the suit land. He also stated that he knew Justus M’Murithi who owned the land. That the plainti occupied the premises until the year 2020 when the premises were demolished. He did not know how the plainti entered the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 3

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The Defendants’ Case 13. The defendants led a replying adavit sworn by Jema Karimi, the 1st defendant on July 8, 2022. The 2nd to 4th defendants are the children of the 1st defendant and beneciaries of the estate of the late Justus M’Murithi M’Mbagari (deceased) while the 1st defendant is the widow of the deceased. It is the defendants’ case that they became registered as owners of land parcel No Ntima/igoki/1227 following the determination of Meru High Court succession cause No 15 of 2007. A copy of the conrmed grant has been annexed. 14. The defendants aver that the plainti entered the suit land with the permission of the deceased whereby he was to put up a shop on the land and then recover the cost of construction from rent received therefrom, and that after recovering his costs and prots, the building was to revert back to the deceased. The defendants pointed out that the deceased had similar arrangements with other people namely Georey, Mangu, and Mungania. 15. That upon the demise of the deceased, the plainti hatched a scheme to take over the ownership of the suit land together with one Teresia Mwakithi (formerly the 2nd defendant herein) who claimed to be the 2nd wife of the deceased while the plainti claimed to be a son of the deceased and proceeded to le Meru High Court Succession cause No 15 of 2007 claiming the deceased’s estate. That in the judgment delivered on December 18, 2019, the court specically found that the plainti and the said Teresia Mwakithi had no legitimate claim over the deceased’s estate. A copy of the judgment has also been annexed. That on May 7, 2020, the High Court further issued an order restraining the plainti from collecting any rent from the deceased’s estate and that the 1st defendant herein was the one to collect the rent. A copy of the order has been annexed. That the tenants who were paying rent to the plainti refused to comply with the court orders and the 1st defendant levied distress for rent whereupon the tenants led Meru Chief Magistrate’s court ELC No 126 OF 2020 under the instructions of the plainti challenging the said distress, but the said suit was struck out by the court on August 19, 2020 on the basis that it was an attempt to circumvent the orders of the court in High Court Succession Cause No 15 of 2007. That the distress for rent proceeded and the said tenants opted to move out of the premises on the suit land. That the court in Meru ELC Appeal No 45 of 2020 similarly rejected an application for injunctive orders made by the said tenants in cahoots with the plainti herein, and the plainti led this suit claiming adverse possession. A copy of the ruling has been annexed. It is the defendants’ contention that the plainti has no legitimate claim over the suit land since the nding of the court in Meru High Court succession cause No 15 of 2007 still stands and has not been reviewed or set aside. The defendants further contend that the suit herein lacks merit and amounts to a gamble with the court process. 16. The 1st, 4th and 5th defendants testied on behalf of the defendants who called one witness. Jema Karimi testied as Dw 1 and relied on the replying adavit and the witness statements dated May 9, 2022 as her evidence in chief. She also produced the documents annexed to the said adavit as D exhibits 1 to 4. It is the evidence of Dw 1 that the plainti entered the suit land with the permission of the late Justus M’Murithi (deceased) who permitted the plainti to construct a building on the land and upon recovering the expenses and prots, he would pay rent. That the plainti recovered his expenses and started paying rent to the deceased. That after the demise of the deceased on May 25, 2003, the plainti declined to pay the defendants rent. It is her evidence that the plainti was a tenant in the suit premises, adding that the issue raised by the plainti in the suit herein were determined by the High Court in Meru succession cause No 15 of 2007, and that the plainti’s structures were demolished pursuant to a court order. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 4

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17. Isabella Karimi Mungania testied as Dw 2 and adopted her witness statement dated May 9, 2022 as her evidence-in-chief. She testied that her late husband, Samuel Joshua Mungania was a tenant in the suit premises and had entered into an agreement to construct a business premises on the suit land and recover the cost plus prots from the rent due and thereafter the premises would revert to Justus M’Murithi. The agreement was produced as exhibit. That after the demise of Justus M’Murithi, they entered into an agreement with the 1st defendant to pay the rent to her which they did until they vacated from the suit land. Dw 2 testied that the deceased had similar arrangements with the plainti and others. She was also a witness in Meru High Court Succession cause No 15 of 2007. 18. Jenadis Nkatha Murithi, the 3rd defendant testied as Dw 3 and adopted her witness statement dated July 28, 2022 as her evidence-in-chief. Her evidence is basically similar to that of Dw 1. Dw 3 stated that the plainti was a tenant and that she referred to him as a guardian as he was paying her school fees from the rent due from the suit premises. 19. Faith Wanja Murithi, the 4th defendant testied as Dw 4 and adopted her witness statement dated July 28, 2022 as her evidence in chief. Her evidence echoed that of the other witnesses, adding that after the death of their father, they were depending on the rent that was being paid by the plainti and other tenants, and that explains why she wrote letters to the plainti to cater for her needs. The Plainti Submissions 20. It is the plainti’s submissions that the probate court’s jurisdiction in Meru Succession Cause No 15 of 2007 did not extent to the plainti’s right over the land vide the doctrine of adverse possession. The plainti’s counsel submitted that this was a preserve of the Environment and Land Court and relied on the case of Estate of Alice Mumbua Mutua (deceased) 2017 eKLR, Patrick Kirimi M’Nganabu v Njeru Muchiri [2021] eKLR and Phyllis Wanjiru Kamau v Wilson Guchuhi Gangagwe & 2 others [2019] eKLR. 21. It is the plainti’s submissions that he took possession of ¼ of an acre of the suit land, asserted his right over it and the person having title to it did not take action until 2020 which was after 27 years. That he possessed the land neither by force, stealth nor under the licence of the owner and that he was removed against the doctrine of lis pendens. That he had been in quiet, peaceful and continuous occupation of the parcel for more than 12 years. The plainti’s counsel relied on the case of Kahindi Ngala Mwangandi v Mtana Lewa [2014] eKLR, Chuka Elc No (OS) E003 of 2021 Irrine Wenda Japhet v Wilberfoce Micheni & another, Kweyu v Omuto [1990] KLR 709 and Wambugu v Njuguna (1993 KLR 173. 22. The plainti’s counsel submitted that the change of title from the original owner to the defendants does not aect the doctrine of adverse possession and did not stop time from running as was held in Paul Kamande Gicheha v Jacob Kinyua Kiragu [2018] eKLR and urged the court to allow the plainti’s claim as it has been proved. The Defendants Submissions 23. It is the defendants submission that the plainti in this matter has failed to meet the requirements for a claim for adverse possession as set out in the cases of Titus Mutuku Kasuve v Mwaani Investments Limited [2004] eKLR, Mbira v Gachuhi [2002]1EALR 137 and Samuel Miki Waweru v Jane Njeri Riddui [2007]eKLR, Gabriel Mbui v Mukindia Maranya [1993] eKLR, Peter Thuo Kamau & another v Luvy Wamaitha Kiarie & 5 others [2021] Eklr and Stella Nduru Ichunge & another v Ezekiel Nkamani M’Ichunge & another [2019] eKLR. It is the defendants submission that the plainti having failed to prove a claim of adverse possession, it follows that the defendants do not hold any portion of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 5

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the suit land in trust for the plainti. The defendants therefore urged the court to dismiss the plainti’s suit with costs. Analysis And Determination 24. The court has carefully considered the pleadings the evidence adduced and the submissions led. I have also taken into account the legal authorities cited by the parties. The issues for determination are whether the plainti has proved his claim for adverse possession and whether he is entitled to the reliefs sought. 25. 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 a portion of the suit land measuring ¼ of an acre 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 or inconsistent with the right of the registered owner. This is in line with the well established principles and requirements for a claim for adverse possession as discussed by the courts. 26. The doctrine of adverse possession is embodied in Section 7 of the Limitation of Actions Act which states-: “ 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.” 27. 28. Section 13 of the same Act provides 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 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 adverse possession of the land.” Section 17 of Cap 22 states 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.” 29. Further, Section 38 (1) of the same 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 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 6

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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.” 30. In addition, Order 37 Rule 7 of the Civil Procedure Rules provides that -: “ (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.” 31. From the contents of the originating summons as set out above, the plainti is claiming to be entitled to the suit land by adverse possession. The summons is brought under Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. Whereas Order 37 Rule 7 prescribes that 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, I note that no such extract was annexed to the summons herein. However, the plainti has instead annexed a copy of certicate of ocial search. In addition, while the plainti is claiming adverse possession in respect of part of the suit land measuring ¼ of an acre, there was no evidence in the form of a sketch map showing the portion claimed. 32. In this case, the plainti testied that he entered the suit land in the year 1993 and constructed a building thereon in 1996 or thereabouts. That he took possession from 1993 upto the year 2020 when his structures were demolished. From his own testimony, the plainti admitted that he entered the land upon a request made by the defendants’ deceased father who wanted it protected from being sold to Mafuko Industries. The plainti categorically stated that the deceased sought his help through the plainti’s father. In my view, that also explains why the plainti was paying for some of the defendant’s fees and other needs. The only logical conclusion I can make is that he was making those payments from rent due from the suit premises. 33. From the pleadings and evidence, it is clear that in this case, the plainti was on the suit land with the permission of the defendants’ deceased husband and father who was originally the registered owner of the land. 34. The law on adverse possession provides that the entry of the adverse possession should not be with the permission or consent of the owner. In Ndiema Samburi Soti v Elvis Kimtai Chepkeses [2010] eKLR, the Court of Appeal held as follows-; “ A person who occupies land with the consent of the owner cannot be said to be in adverse possession as in reality he has not disposed the owner and the possession is not illegal. (Wanje v Saikwa (No 2) (1984) KLR 284). 35. This was also observed by Lenaola J ( as he then was) in Beatrice Syokau Gathumba v Kenya Airports Authority & 2 others [2012] eKLR where he stated as follows: “ I must emphasis that it is an element of adverse possession that it ought to be hostile’ and without permission from the true owner of the land. The fact that the petitioner’s husband was permitted occupancy of the suit premises at one time as a manager of the animals and in the second time as a licensee is inconsistent with the doctrine of adverse possession because https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 7

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an intruder who is given permission or a license has no cause of action during the period of his permission or license” 36. I further note in the judgment in Meru High Court Succession Cause No 15 of 2007 delivered on December 18, 2019, the probate court specically found that the plainti herein had no legitimate claim over the estate of Justus M’Murithi (deceased) which include the suit premises. It is clear therefore that the plainti’s possession is an afterthought after his quest in Meru High court Succession cause No 15 of 2007 opped. 37. From the evidence on record, it is my nding that the plainti has not proved on a balance of probability a claim for adverse possession of ¼ of an acre of suit land. The plainti was invited into the land by the owner and allowed to put up a building, recover his expenses and thereafter pay rent. That was an agreement the deceased owner had also with other tenants. As a tenant, the plainti cannot be allowed to turn around and assert his right over the suit premises against the owners who permitted him to be on the land. It is therefore my nding that the plainti has not proved his case on a balance of probabilities and his claim for adverse possession must fail. 38. For the foregoing reasons, the plainti’s suit is dismissed with costs to the defendants. 39. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 12TH DAY OF JULY, 2023 C.K YANO JUDGE In the presence of Court assistant – V. Kiragu Mrs. Muia for plainti Ms Gitari for 1st – 4th defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22619/eng@2023-07-12 8

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