Introduction
The Applicant commenced this suit vide Originating Summons dated 8th June, 2023 against the Respondent seeking the following orders:
1. The Applicant be declared to have become the legal owner entitled by adverse possession of over twelve (12) years since 2004 of all that parcel of land comprised in LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/234 & 237 situated in Nakuru or in the alternative, the Respondent be declared to have been holding the title over LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in trust for the Applicant.
2. The said Applicant be registered as the sole proprietor of the said parcel of land namely LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in place of the above-named Respondent in whose favour the suit parcel is currently registered.
3. The cost of this Application be provided for.
The summons was based on the Applicant’s supporting affidavit sworn on 8th June, 2023. She stated that she has established a children home on the suit parcels having been invited by the Respondent. She further stated that she has been in occupation carrying out the same peacefully without any interruption since 2004. She also stated that her occupation has been peaceful, open and uninterrupted and that the Respondent still holds the title deeds. The Applicant added that she has also lived on the suit parcel with the Respondent’s knowledge without payment of rent, license fee or any other consideration. She stated that she has also made substantive improvements to the existing structures and made them to the required habitable standard.
The Respondent did not file any response to the summons.
Submissions
Counsel for the Applicant filed his submissions dated 30th November, 2024 where he gave a background of the case and identified one issue for determination, whether or not the true owner’s rights, herein the Respondent have been dispossessed. Counsel submits that the Respondent has clearly relinquished his rightful ownership of the parcel of land NAKURU MUNICIPALITY BLOCK 3/324 & 237. He relied on Section 38 of the Limitation of Actions Act which entitles a person in adverse possession to apply for registration as the proprietor of the land after a continuous period of twelve years.
He cited the case of Martin Guya Ouko V Agunga Adundo, Richard Otieno Ndiga & Abayo William Ochieng (293 of 2013) [2015] KEHC 4466 (KLR) and Section 7 of the Limitation of Actions Act. He went on to submit that there were three prerequisites to be met before one is declared owner of the suit land by adverse possession. The first is one has to be freely in occupation of the land under the owner’s license, the stay should be continuous and that possession is adverse to the title owner.
Counsel relied on Sections 37 and 38 of the Limitation of Actions Act and submits that if the land was registered under one of the registration Acts, then the title is not extinguished but held in trust for the person in adverse possession until she shall have obtained and registered a High court order vesting the land in him. He submits that the Applicant fulfilled the said requirements since she has been in an uninterrupted occupancy of the suit lands since 2004. He relied on the case of Virginia Wanjiku Mwangi V David Mwangi Jotham Kamau (Civil Case 86 of 2011) [2013] KEHC 1919 (KLR). He added that the Applicant has been in continuously and constantly using the suit properties.
It was counsel’s submission that the Applicant’s activities have since altered the condition of the land to the exclusion of the Respondent which activities have been done publicly. He submits that the Applicant has successfully demonstrated that she met all the essential requirements for adverse possession.
In conclusion, he urged the court to grant the Applicant ownership of the suit property under the doctrine of adverse possession.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether the Applicant has acquired the suit property adversely.
b) Who should bear the costs of the suit.
It is not in dispute that the Respondent did not enter appearance or controvert the Applicant’s application despite having been served by way of substituted service on 18th March, 2024.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“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 first accrued to some person through whom he claims, to that person. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the 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 sections 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 adverse possession of the land…”
In Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“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 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”.
In the present case, it is the Applicant’s case that she has been in quiet, peaceful and continuous occupation of the suit property since 2004 which is over 12 years. It is also not in dispute that she has since made developments on the suit properties as evidenced by the annexed photographs. It is a fact that the Applicant’s claim remains uncontroverted by the Respondent.
The upshot of the foregoing is that the Applicant having satisfied the requirements on adverse possession she has acquired the suit properties by virtue of adverse possession.
The prayers as sought in the amended originating summons dated 8th June, 2023 is hereby allowed as follows:-
1. The Applicant be and is hereby declared to have become the legal owner entitled by adverse possession of over twelve (12) years since 2004 of all that parcel of land comprised in LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/234 & 237 situated in Nakuru
2. The said Applicant be registered as the sole proprietor of the said parcel of land namely LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in place of the above-named Respondent in whose favour the suit parcel is currently registered.
There shall be no orders as to costs. It is so ordered.
The Applicant commenced this suit vide Originating Summons dated 8th June, 2023 against the Respondent seeking the following orders:
1. The Applicant be declared to have become the legal owner entitled by adverse possession of over twelve (12) years since 2004 of all that parcel of land comprised in LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/234 & 237 situated in Nakuru or in the alternative, the Respondent be declared to have been holding the title over LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in trust for the Applicant.
2. The said Applicant be registered as the sole proprietor of the said parcel of land namely LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in place of the above-named Respondent in whose favour the suit parcel is currently registered.
3. The cost of this Application be provided for.
The summons was based on the Applicant’s supporting affidavit sworn on 8th June, 2023. She stated that she has established a children home on the suit parcels having been invited by the Respondent. She further stated that she has been in occupation carrying out the same peacefully without any interruption since 2004. She also stated that her occupation has been peaceful, open and uninterrupted and that the Respondent still holds the title deeds. The Applicant added that she has also lived on the suit parcel with the Respondent’s knowledge without payment of rent, license fee or any other consideration. She stated that she has also made substantive improvements to the existing structures and made them to the required habitable standard.
The Respondent did not file any response to the summons.
Submissions
Counsel for the Applicant filed his submissions dated 30th November, 2024 where he gave a background of the case and identified one issue for determination, whether or not the true owner’s rights, herein the Respondent have been dispossessed. Counsel submits that the Respondent has clearly relinquished his rightful ownership of the parcel of land NAKURU MUNICIPALITY BLOCK 3/324 & 237. He relied on Section 38 of the Limitation of Actions Act which entitles a person in adverse possession to apply for registration as the proprietor of the land after a continuous period of twelve years.
He cited the case of Martin Guya Ouko V Agunga Adundo, Richard Otieno Ndiga & Abayo William Ochieng (293 of 2013) [2015] KEHC 4466 (KLR) and Section 7 of the Limitation of Actions Act. He went on to submit that there were three prerequisites to be met before one is declared owner of the suit land by adverse possession. The first is one has to be freely in occupation of the land under the owner’s license, the stay should be continuous and that possession is adverse to the title owner.
Counsel relied on Sections 37 and 38 of the Limitation of Actions Act and submits that if the land was registered under one of the registration Acts, then the title is not extinguished but held in trust for the person in adverse possession until she shall have obtained and registered a High court order vesting the land in him. He submits that the Applicant fulfilled the said requirements since she has been in an uninterrupted occupancy of the suit lands since 2004. He relied on the case of Virginia Wanjiku Mwangi V David Mwangi Jotham Kamau (Civil Case 86 of 2011) [2013] KEHC 1919 (KLR). He added that the Applicant has been in continuously and constantly using the suit properties.
It was counsel’s submission that the Applicant’s activities have since altered the condition of the land to the exclusion of the Respondent which activities have been done publicly. He submits that the Applicant has successfully demonstrated that she met all the essential requirements for adverse possession.
In conclusion, he urged the court to grant the Applicant ownership of the suit property under the doctrine of adverse possession.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether the Applicant has acquired the suit property adversely.
b) Who should bear the costs of the suit.
It is not in dispute that the Respondent did not enter appearance or controvert the Applicant’s application despite having been served by way of substituted service on 18th March, 2024.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“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 first accrued to some person through whom he claims, to that person. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the 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 sections 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 adverse possession of the land…”
In Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“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 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”.
In the present case, it is the Applicant’s case that she has been in quiet, peaceful and continuous occupation of the suit property since 2004 which is over 12 years. It is also not in dispute that she has since made developments on the suit properties as evidenced by the annexed photographs. It is a fact that the Applicant’s claim remains uncontroverted by the Respondent.
The upshot of the foregoing is that the Applicant having satisfied the requirements on adverse possession she has acquired the suit properties by virtue of adverse possession.
The prayers as sought in the amended originating summons dated 8th June, 2023 is hereby allowed as follows:-
1. The Applicant be and is hereby declared to have become the legal owner entitled by adverse possession of over twelve (12) years since 2004 of all that parcel of land comprised in LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/234 & 237 situated in Nakuru
2. The said Applicant be registered as the sole proprietor of the said parcel of land namely LAND PARCEL NOS. NAKURU MUNICIPALITY BLOCK 3/324 & 237 in place of the above-named Respondent in whose favour the suit parcel is currently registered.
There shall be no orders as to costs. It is so ordered.