keelc-2024-01502

Council approved the sale and transfer on 23/12/1980. The plaintifi took possession of the land which he developed and occupied for almost fifty (50) years. Recently, the defendants have appeared and claim part of the land which measures 0.0487 acres which they call LR 13977. The plaintifi fears that the defendants have ill motives and they may use unorthodox and illegal methods to dispossess him of the suit land or part thereof. He concludes by saying that if any of the defendants had any interest in any part of the land without the plaintifi’s knowledge, that right has been extinguished by the plaintifi’s long occupation which has exceeded the statutory twelve (12) years required for one to become entitled to such land through adverse possession. He prays that he be declared the owner of the entire land measuring 0.35 acres. 3. 4. In support of his case, the plaintifi filed the following evidence. i. A supporting afidavit dated 0/6/2016. ii. Copies of receipts dated 8/12/1980, 8/1/1987 and 8/12/1980 for Kshs. 1,000/, Kshs. 4, 200/and Kshs. 35,000/-. iii. Transfer instrument dated 3/12/1980. iv. Copy of map. v. Copy of title for LR 13977 in the names of Yusuf Githinji Saleh, Hussein Githinji Mwangi, Joseph Kamau Mwangi and Francis Ruhiu Macharia trading as Coro Bar and Restaurant dated 1/3/1990. vi. Witness statement dated 30/6/2016. vii. Four (4) photographs. viii. Witness statements by Musa Junior Omare and Regina Omare both dated 26/1/2023. The summons are opposed by the defendants. In opposing the summons Joseph Kamau Mwangi filed a replying afidavit dated 10/11/2016 in which he deposes as follows. Firstly, in June 2016, they asked the plaintifi to vacate their land or in the alternative buy it from them as they are the lawful owners. Secondly, it is not correct to say that the plaintifi has enjoyed uninterrupted occupation because there is HCCC No. 6323 of 1991 (Nairobi) where he and other defendants sued the plaintifi seeking that he be evicted from their land. Thirdly, the plaintifi is a trespasser who should be evicted from the defendants’ land. 5. In support of their case, the defendants filed the following evidence. i. Replying afidavit by Joseph Kamau Mwangi dated 10/11/2016. ii. Witness statement by Francis Ruhiu Macharia dated 16/4/2021. iii. Copy of plaint in HCCC ( Nairobi) 6323 of 1991 in which the defendants were the plaintifis and they sought the eviction of the plaintifi from LR 13977 Ngong Town Kajiado. iv. Copy of order dated 14/11/2017 showing that HCCC 6323 of 1991 was dismissed on 16/6/2016 by Mabeya Judge for want of prosecution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1502/eng@2024-03-19 2

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6. At the trial on 13/2/2023 the plaintifi testified and produced his documents as exhibits and then called his two witnesses Musa Junior and Regina Moraa. All the three were subjected to cross –examination by the defendants’ counsel. On the part of the defendants it is the third defendant Francis Ruhiu Macharia who testified on their behalf. He produced the documents filed earlier and he too was cross-examined by the plaintifi’s counsel. 7. Counsel for the parties filed written submissions dated 2/5/2023 and 4/11/2023. The defendants’ counsel identified five (5) issues for determination as follows. i. Whether the applicant has been in possession of the subject property for a period of over forty one years, since the year 1980. ii. Whether the applicant has erected permanent structures on the suit property. iii. Whether the applicant is barred by relevant provisions of the law of Limitation to claim the property. iv. Whether the respondents were rightfully allocated the land in question by Olkejuado County Council. v. Whether the applicant has fulfilled the essential requirements for the orders sought and if so, is he entitled to them. The plaintifi’s counsel in his submissions, though filed six months after the defendants’ submissions, did not identify his own issues or respond to the ones filed by the defendants’ counsel. 8. 9. I have carefully considered all the evidence adduced in this case by both sides including the afidavits, witness statements, documents, testimony at the trial and the entire record. I have also considered the written submissions by the learned counsel for the parties including the issues identified therein and the law cited. I find that the plaintifi’s suit raises the following issues. i. Whether the land the plaintifi claims is 0.35 acres on 0.2989 acres. ii. Whether the defendants are the registered owners of LR 13977. iii. Whether the occupation of the subject matter by the plaintifi has been without force, without secrecy and without permission, that is to say nec vi, nec claim and nec precario. iv. Whether the failure to serve the plaintifi with the pleadings in HCCC 6323 of 1991, if it be true, is material to the current suit. v. Who should pay the costs. On the first issue, I find that the plaintifi has not come out clearly on the exact size of the land that he claims. In paragraph 2 of the afidavit dated 30/6/2016, the plaintifi says that the land he bought from M.S. Chawla was 0.25 acres. At paragraph 5 of the same afidavit, he says that LR 13977 measures 0.0487 acres and in paragraph 8 he says; 8. “That in the circumstances I seek a declaration that I am the owner of the entire land measuring 0.35 acres against any claimant”. If the plaintifi’s land is 0.25 acres and the defendants’ land is 0.25 acres and the defendants’ is 0.0487 acres, then the total acreage of the two parcels is 0.2987 acres. The difierence between the land that the plaintifi claims and the total size of the plaintifi’s and the defendants’ land is 0.0513 acres. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1502/eng@2024-03-19 3

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question that begs for an answer then is this, where does the extra land measuring 0.0513 acres come from? The plaintifi’s evidence does not answer this question. 10. Regarding the second issue, the plaintifi is on record at page 44 of the handwritten proceedings of 13/2/2023 saying; “ I can see a copy of the title deed in the name of the respondents. This title deed is fake. It is nowhere in the records… I have not brought any evidence by an expert to prove that the copy is fake…” The plaintifi was then under cross examination by Miss Waweru for the defendants. If the plaintifi doubts the authenticity of the defendants’ title to the land that he claims, then he should not have filed this suit against them . He should have sued the genuine owners. It has been held in the case of Haro Yonda Tuaje v Sadaka Dzengo Mbauro and another [2014] eKLR (Malindi ELC) that adverse possession cannot be claimed against a title that is claimed to be defective. It is my finding that the defendants are the registered owners of LR No. 13977 Ngong Town and the copy of certificate of title dated 1/3/1990 and produced by the plaintifi as exhibit (v) is prima facie evidence of such ownership within the meaning of Section 26(1) of the Land Registration Act. 11. When it comes to the third issue, I find that the plaintifi’s occupation of the defendants’ land No. 13977 has not been without force. It is not doubtful that his occupation has been without secrecy and without permission but when it comes to the third ingredient of the prerequisites to a successful claim for adverse possession, force has been proved. The plaint dated 16/11/1991 has the following averments. 5. “On or about the month of July, 1990 the defendant without any lawful justification started fencing the parcel of land belonging to the plaintifi”. 6. “After a warning from the Kajiado County Council, the defendant stopped the plantifi fence but has now insisted that he is going to do the wanton acts of trespass on the plaintifi’s parcel of land”. 9. “Despite demand made and notice of intention to sue given, the defendant persists in acts sued for”. 12. These averments in the 1991 suit seriously undermine the plaintifi’s evidence that he occupied the suit land in 1980 and that he was not aware of the suit. Yet he is the one with the burden of proof. This suit lasted until 16/6/2016 when it was dismissed for want of prosecution. For all the period that the suit lasted, time stopped running in favour of the plaintifi. The plaintifi has therefore not proved two essential things. 13. The first is that he ever occupied LR 13977 without force. The second one is that such occupation without force was for 12 uninterrupted years. Even if the plaintifi had not been served with the court process, which I find he was served with, it is immaterial. As long as there was a suit challenging the plaintifi’s occupation of the defendants’ land, then his occupation of it was with force. The plaintifi was and still is a trespasser on the defendants’ land No. 13977 Ngong Town and it is also immaterial whether he has built permanent or temporary structures thereon. This finding also covers the issue raised as number (iv) in paragraphs 8 above. 14. For the foregoing reasons, I find no merit in the plaintifi’s suit. Further under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Act I order that the plaintifi be evicted from the defendants’ land, that is to say, 13977 Ngong Town on expiry of sixty (60) days if he does not vacate voluntarily therefrom. Costs to the defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1502/eng@2024-03-19 4

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It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 19H DAY OF MARCH 2024. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1502/eng@2024-03-19 5

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