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JudgmentDAVID MWANGI GITAU VS DOMINIC NJENGA KARUTHI21 min read

DAVID MWANGI GITAU VS DOMINIC NJENGA KARUTHI

Environment and Land Court at Naivasha Environment and Land Court · · Oundo M Clausina

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA

ELC ORIGINATING SUMMONS NO. 7 OF 2024

(FORMERLY NAKURU ELC ORIGINATING SUMMONS E001 OF 2023)

(FORMERLY ORIGINALLY FAST TRACK CIVIL SUIT NUMBER 16 OF 2011 (OS))

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CHAPTER 22 LAWS OF KENYA

AND

IN THE MATTER OF LAND REFERENCE NO. KIJABE/KIJABE BLOCK 1/2787

BETWEEN

DAVID MWANGI GITAU………………………………………………….……PLAINTIFF

AND

DOMINIC NJENGA KARUTHI…………………………………….………DEFENDANT

JUDGMENT.

  1. Vide an Amended Originating Summons dated 28th December, 2011 brought pursuant to the provisions of Order 37 Rule 14 of the Civil Procedure Rules 2010, the Plaintiff herein sought for the determination of the following questions:
      1. Whether the Plaintiff has been in continuous occupation of all that piece of land known as Kijabe/Kijabe Block 1/2787 for a period of more than 12 years.
      2. Whether a declaration should be issued to the effect that the Plaintiff has acquired title to all that piece of land known as Kijabe/Kijabe Bock 1/2787 by way of Adverse Possession and/or prescription.
      3. Whether an order should be issued directing the Naivasha District Land Registrar to register all that piece of land known as Kijabe/Kijabe Block 1/2787 in the name of the Plaintiff having acquired title to it by way of adverse possession.
      4. Whether the Defendant should be ordered to transfer all that piece of land known as Kijabe/Kijabe Block 1/2787 to the Plaintiff.
      5. Who should pay the costs of the Originating Summons?
      6. Spent.
      7. Whether a permanent injunction should be issued restraining the Defendant either by himself, his agents, servants, employees or otherwise howsoever be restrained from entering, ploughing, erecting any structure, or in any other way interfering with the Plaintiff’s peaceful and quiet possession or otherwise howsoever of all that parcel of land known as Kijabe/Kijabe Block 1/2787.
  2. The Amended Originating Summons is supported by the Supporting Affidavit of equal date sworn by David Mwangi Gitau, the Plaintiff herein.
  3. Directions were taken that the Amended Originating Summons, be heard vide voce Evidence wherein upon compliance with pre-trial directions, the matter proceeded for hearing wherein the Plaintiff, David Mwangi Gitau, testified as PW1 to the effect that he had sued the Defendant with regard to parcel of land No. Kijabe/Kijabe Block 1/ 2787 (suit land).
  4. That he had balloted for the suit land wherein he had been given a ballot card No. 2787 by the Mai Mahiu Company in a year that he could not recall. He produced the ballot card as Pf exh 1.
  5. That alongside the ballot, he had also been issued with a receipt serial No. 2787 dated 9th February 1984 by Mai Mahiu Kijabe Longonot Company which receipt he produced as Pf exh 2 (a). Subsequently he had been given a Share Certificate in his name, dated 25th May, 1981 by the office. He also produced the Share Certificate as Pf exh 2 (b).
  6. He explained that after he had paid some money to the company and balloted, he had been given the land wherein he had built a small house in the year 1981 and stayed there between 5 to 10 years. That he had left the land under the care of his caretaker John Kihiko as he went home to Githunguri. He had planted maize on the land.
  7. That it was when he had gone to pick his title, that he had discovered that the land had been registered to somebody else whom he did not know. That that person had neither visited the land nor had anybody tried to evict him from the same, and neither had there been any case filed against him save for the present case that he had filed.
  8. He explained that he had only had a dispute brought before the headman to look into the issue after he had discovered that the title had been issued to somebody else. He clarified that when he left for Githunguri, he had left John on his land to plant maize and use the same.
  9. When he was referred to a Green Card, he confirmed that the same was in reference to land parcel No. 2787 and contained the name Dominic Njenga, the Defendant herein who had been issued with a title on 18th March 1994. He produced the said Green Card as Pf exh 3.
  10. On being cross-examined, the Plaintiff confirmed that whereas he lived in Githunguri, the suit property herein was in Maai Mahiu and that he had left the same with John Kihiko. That the said John Kihiko was the one who had shown him the headman and the chief. That he did not know how the Green Card had been obtained snice he had not applied for it.
  11. He was categorical that the suit land was his having been given by the company. He also reiterated that he could not recall the year when he had gone to look for the title deed although he had recorded a statement with the Chief and headman so that they could look for the person who had been registered as proprietor of his land in the title.
  12. That he had filed the instant suit so that he could be given the title deed to his land. That he did not know where the Defendant had obtained his title deed from.
  13. John Kuria Kihiko testified as PW2 to the effect that he was the Chairman of Maai Mahiu original stake holders. That he had known the Plaintiff for over 30 years because he had a ‘shamba’ near his area called Mafuta Tea area in an estate known as Baraka Estate. That the Plaintiff’s ‘shamba’ was a distance of about two to three ‘shambas’ away from his land.
  14. That the Plaintiff’s parcel of land was number Kijabe/Kijabe Block 1/2787 and that he had acquired the said land through voting in the the company wherein he had been issued with a certificate. He identified the Voter Card and the Certificate herein produced as Pf exh 1 and 2 respectively before he proceeded to testify that the Plaintiff had left the suit land under his care around the year 2000 wherein he had ploughed the same for about 10 years.
  15. That later on, they had agreed that the Plaintiff would sell the suit land to him but when they visited the the land’s office to inquire about the documents, they had learnt that the land had been registered in the name of the Defendant herein for which they had filed the instant case.
  16. His evidence was that the Green Card had been shown to them at the Lands office wherein it had depicted the Defendant as the owner of the suit land. He maintained that the Plaintiff was the owner of the suit land and that there had been many cases of forgery around the area where the suit land was situated.
  17. That the Plaintiff had taken possession of the suit land from the year 1985 up to the year 2000 when he left the same to him. That the Plaintiff used to plough the land and had a small house therein before he left.
  18. The witness was Cross-examined wherein he confirmed that the Plaintiff had stayed on the suit land for some time because he was the owner of the land. That they had gone to the lands office because the Plaintiff wanted to sell the land to him. That whereas he owned land in that area, the title deeds were normally issued when the need arose.
  19. He confirmed that he had obtained his own title around the year 1998 and that he was an original owner to one parcel of land. That he had also bought land that was bordering the Plaintiff’s land from somebody else. That upon discovering that the suit land had been registered to a different person, the Plaintiff had decided to file the present suit in the year 2011 after consulting the Advocates.
  20. His evidence was that the suit land had never been owned by the Defendant and that although he was a local person in the area, he did not know the said Defendant. That whereas he was not aware that the Plaintiff had stated that he had been occupying somebody else’s land, the Plaintiff too did not know the Defendant.

That Plaintiff thus closed his case.

  1. The Defendant opened his case with the opening statement from his Advocate on record, one Mr. Githua who submitted that the suit herein was an Originating Summons under the statute of Limitation of Actions Act. That however, the evidence that had been adduced did not support the Originating Summons. That subsequently, the Defence would prove that the Plaintiff had never been in possession of the land save for his witness who had been in use of the same instead.
  2. DW1, one Dominic Njenga Kiruthi, the Defendant herein testified that he had been sued by somebody he did not know, the Plaintiff herein, who was claiming his land. That he could not remember the title number of the ‘shamba’ and after his Counsel reminded him, he confirmed that the land was parcel No. Kijabe Block 1/2787.
  3. That whereas he could not remember the year when he had purchased the suit land, the purchase had been from two brothers who were now deceased and whose names he could not remember. That the suit land had been vacant hence he had cultivated on the same from the time he purchased it up to when he had handed it over to his nephew who had continued utilizing it.
  4. He maintained that he did not know the Plaintiff who had not been on the land when he had bought the same. He confirmed that his nephew was still utilizing the land.
  5. On being cross-examined, the Defendant admitted that whereas he had purchased the land from two brothers, he had not produced the sale agreement in the court. He re-iterated that he could not remember the names of the two brothers and neither had he been issued with a share certificate, ballot or receipts from the company. That he had however sworn an Affidavit before an Advocate.
  6. That whilst he could not remember when he had purchased the land, it was way back in the year 1994. He confirmed that he had not constructed a house or lived on that property and when he was referred to paragraph 4 of his Replying Affidavit, he confirmed that the details contained therein were true.
  7. He testified that his nephew’s name was Alfaxad Wanjagi and that he did not continue cultivating the land after he gave it to his nephew. That nonetheless, he used to visit Alfaxad and his family. He also confirmed that there had been no other suit between him and the Plaintiff other than the present one. That further, he had never reported the Plaintiff to the chief or written a demand Notice to him.
  8. In re-examination, he maintained that the Plaintiff was not in occupation of the suit land.
  9. Alphaxad Ngugi Wanjagi testified as DW2 to the effect that the Defendant who was his uncle had a ‘shamba’ in Maai Mahiu which parcel number he could not remember although he knew the area where it was situated.
  10. His evidence was that the Defendant had bought the ‘shamba’ in 1994 where he had proceeded to cultivate it before leaving under his care. That he had then started utilizing the ‘shamba’ from the year 1999 to the year 2007. That he had then stopped utilizing it because he had transferred his business from Maai Mahiu to Nairobi. That nobody had claimed the shamba during the time that he had been using it and that the same was currently vacant.
  11. In cross-examination, he maintained that he could not recall the land parcel number and that the Defendant was his uncle. He clarified that the suit land herein was not the only land parcel that the Defendant owned, but that he owned several other parcels of land. He maintained that the suit land had been vacant while he was farming therein and that whereas the Defendant had been ploughing the said land, he did not live therein.
  12. He confirmed that the Defendant had given him the land in the year 1999 where he had only done farming but had not lived thereon. He confirmed that he had no documents in court to show that he had been ploughing on the suit land.
  13. That whereas he knew John Kuria who was a native of Maai Mahiu, he was not aware that the said John had been farming in that area. He maintained that he did not live on the land and that there had neither been a house nor a latrine on the said land. He admitted that he had nothing to prove that the Defendant used to plough the suit land.
  14. When he was re-examined, he confirmed that at the time he used to cultivate the land, he lived in Maai Mahiu Town Center which was near the land.
  15. The Defence closed its case and parties took directions to file their respective submissions which I shall summarize as herein under:

Plaintiff’s Submission.

  1. The Plaintiff, vide his submissions dated 24th February, 2025 submitted that it had not been in dispute that although the Defendant had acquired the suit property in the year 1994, he had neither constructed anything nor occupied the same and there had been no suit or dispute relating to the suit property that had ever been filed or referred for determination.
  2. That indeed Pf exh 3 had confirmed that the Defendant had acquired the title deed to the suit property in the year 1994. That whereas the Defendant had asserted that he had leased the suit property and/or had permitted DW2 to occupy the same, it had remained apparent that no proof had been tendered in support of the said allegation. That in any case, DW2 had confirmed that the Defendant had numerous land parcels in the area and that he could not ascertain the land parcel number that he had occupied.
  3. That the Plaintiff had entered and occupied the land in the year 1984 or thereabout wherein he had utilized the same uninterruptedly until the year 2010 when he had discovered that the title deed to the land had been issued to the Defendant. That from the evidence that had been tendered, the Plaintiff had never been aware of the Defendant’s claim to the suit property until the year 2010 when he came to learn of the said title that had been issued in the Defendant’s name.
  4. Reliance was placed on the decisions in the case of Maweu v Liu Ranching& Farming Cooperative Society [1985] eKLR and Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR as well as on Volume 24 Halsbury’s Laws of England, 3rd Edition at page 252 to submit on what constitutes dispossession wherein the Plaintiff reiterated that he had cultivated the land from the year 1984 after which he had leased the same to PW2, and therefore he had been in occupation of the suit property without any interference from the Defendant for more than 12 years.
  5. That indeed the Defendant had admitted to not having made any effort to disrupt the Plaintiff’s occupation or take possession of the land thereof. It was thus his submission that by the time the Defendant was acquiring his title deed, the Plaintiff had lived on the suit property for more than 12 years uninterrupted.
  6. He placed reliance on the decisions in the case of Titus Kigoro Munyi v Peter Mburu Kimani [2015], Githu v Ndeete and Douglas Mbugua Mungai v Harrison Munyi [2019] eKLR to submit that time started running immediately the title deed had been issued to the first registered owner which was in the year 1988.
  7. That the Plaintiff had thus been in occupation of the suit property for over 12 years which occupation had been open and notorious and with the knowledge of the owner. That the said occupation had been without the permission of the owner.
  8. He thus sought for his Originating summons to be allowed as prayed.

Defendant’s Submissions.

  1. The Defendant on the other hand vide his submissions dated 28th February, 2025 summarized the factual background of the matter and then framed one (1) issue for determination to wit; Could one be in adverse possession of his own piece of land?
  2. That the Plaintiff had maintained that the land in question had never belonged to the Defendant hence adverse possession did not arise. That indeed, the Plaintiff being the owner as he had claimed should have taken out proceedings to cancel the title and thereafter sue the Defendant jointly with the person who had sold him the suit land. That in any case, such a claim was time barred under the provisions of Section 7 of the Limitation of Actions Act.
  3. That the Green Card herein produced by the Plaintiff had indicated that the title to the suit land had been issued on 30th December1988 to John Gitango and Muchai Ngaruiya who had subsequently transferred the same to the Defendant on 18th March 1994. That further, possession by the Plaintiff had been denied by the Defendant who had called one witness.
  4. It was thus his submission that ownership could not be claimed where the suit before the court was for adverse possession. That subsequently, the Plaintiff had not on balance of probability proved his case as set out in the Originating Summons. He thus prayed that the Plaintiff claim be dismissed with costs.

Determination.

  1. This is a matter where the Plaintiff/Applicant herein seeks for orders that he be registered as proprietor parcel of land No. Kijabe/Kijabe Block 1/2787 measuring 1.01 hectares having acquired title by virtue of the doctrine of Adverse Possession. The Plaintiff’s case was that he had balloted for the suit land wherein he had been given a ballot card No. 2787 and subsequently upon payment of the required fee, he had been issued with the receipts on the 9th February 1984 and his Share Certificate by the Mai Mahiu Kijabe Longonot Company on the 25th May, 1981. That he had taken possession and occupation of the land where he had built a house and had proceeded to cultivate Maize for about 5 to 10 years when around the year 2000, he left it in the care of PW2 to continue cultivating on it as he left for Githunguri.
  2. That PW 2 who was Chairman of Maai Mahiu original stake holders had proceeded to plough the land for a further 10 years when the Plaintiff sought to sell it to him. It was when they had visited the lands office to procure the documents, that they had discovered that the land had been registered to the Defendant who had been issued with a title on the 18th March 1994. The Plaintiff thus filed suit.
  3. Plaintiff’s case was that by virtue of the Defendant having been registered as proprietor of the land he had balloted for and further by virtue of the fact that he had been in peaceful possession of the land from the year 1981 wherein he had left it in the care of PW2 who was in peaceful possession to date, that his occupation was over the requisite 12 years, and therefore he ought to be declared to have acquired prescriptive rights as an adverse possessor over land parcel LR Kijabe/Kijabe Block 1/2787.
  4. The Defendant’s case on the other hand was that indeed he had bought the suit land from two brothers whose names he could not remember and in a year he also could not remember but that it was way back in the year 1994, vide a sale agreement he did not have. That he had not developed the land but had cultivated on it for some time before subsequently handing it over to his nephew, DW2. Although the Defendant’s evidence was that his Nephew was still cultivating the land, DW2 in his testimony confirmed that indeed he had utilized the land from the year 1999 to the year 2007 when he left for Nairobi. He also confirmed that the Defendant had many other parcels of land within that area.
  5. The court is mindful of the legal attribution to the doctrine of Adverse Possession which is embodied in Section 7 of the Limitation of Actions Act, in these terms:

“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…”

  1. Section 13 of the Limitation of Actions Act aforesaid further provides that:

A right of action to recover land does not accrue unless the land is in the possession of some person in whose favor 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 the 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.

  1. Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration Acts, then the title is not extinguished but held in trust for the person in Adverse Possession until he shall have obtained and registered a High Court (Read Environment and Land) Order vesting the land in him/her
  2. Section 37 of the Limitation of Actions Act provides that:

‘’Where a person claims to have become entitled by Adverse Possession to land registered under any of the Acts cited in Section 37, to land or easement 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.”

  1. In terms of Section 38 of the Limitation of Actions Act, where a person claims to have become entitled by Adverse Possession to land, (s)he must apply to the High (Read Environment and Land Court) for an order that (s)he be registered as the new proprietor of the land in place of the registered owner. The elaborate procedure of moving the Court is provided for in Order 37 Rule 7 of the Civil Procedure Rules 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 affidavit to which a certified extract of the title to the land in question has been annexed.
  2. From the evidence herein submitted, is clear that although the Plaintiff had balloted for the suit land, which ballot documents and the share certificate correlate with the Green card herein produced as Pf exh 3, he had not been registered as the proprietor of the land which land had been registered to John Gitangu and Muchai Ngaruiya instead on the 30th December 1988 wherein title had been issued. On the 18th March 1994 the land was registered to Diminic Njenga Karuthi the Defendant herein.
  3. Section 26(1) of the Land Registration Act is very clear on the importance of a title deed as follows;

“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

  1. It is therefore not in contention that once the Defendant had been registered as proprietor of the suit land, then time for the purpose of adverse possession, started running as the statute does not begin to operate unless and until the true owner is not in possession of his land.
  2. In our case, the Plaintiff testified that he took possession of the land in the year 1981 and cultivated Maize for about 5 to 10 years when around the year 2000, he left it in the care of PW2 to continue cultivating on it for another 10 years before they went to look for the title. The calculation for Adverse possession against the Defendant thus started running from the 18th March 1994 up until the year 2011 when this suit was filed which then gives us a period of 17 years approximately.
  3. In Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR the Court of appeal held that:

“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 of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner.”

  1. According to the rule on adverse possession, a party claiming must have been in possession for over 12 years and that the period starts running a fresh whenever there are changes in the title. Indeed, in the case of Kimani Ruchine & Anor -vs- Swift Rutherford & Co. Ltd and Another (1980) KLR 10, it was held for example that where cultivation of land is advanced to support the claim to adverse possession, the evidence of the cultivation must be definite as to the area and time in our case cultivation had began in the year 1984 up to 2010.
  2. In Mwangi Githu v Livingstone Ndeete [1980] eKLR, the Court of Appeal had observed as follows:

“It is convenient to consider first the learned judge’s alternative decision that the respondents had established titles by adverse possession. Mr Gaturu attacked this part of the judgment on three grounds. Firstly, he submitted that change of ownership interrupts adverse possession, and that accordingly time did not begin to run against the appellant until he was registered as proprietor of the land in 1966. The answer to this submission is that immediately before the appellant became the registered proprietor in 1966 the respondents were in the course of acquiring rights under section 7 of the Limitation of Actions Act, cap 22, and by virtue of section 30 (f) of the Registered Land Act, cap 300, those rights are overriding interests. The appellant even as a registered purchaser for value could never be in a better position than his predecessor in title and must take subject to the rights of squatters.’’

  1. I therefore hold and find that the Plaintiff has proved on a balance of probabilities that his right of action as against the Defendant had accrued as at the time of filing this suit for the suit property to be said to have fallen into his possession pursuant to the provisions of Section 38 as read together with Sections 7, 9 and 13 of the Limitation of Actions Act.
  2. In the circumstance herein the Plaintiff’s Originating Summons dated 28th December, 2011 succeeds in its entirety in the following terms;
      1. That the Plaintiff has acquired title to all that piece of land known as Kijabe/Kijabe Bock 1/2787 measuring 1.01 hectares by way of Adverse Possession and/or prescription.
      2. The Defendant shall within 30 days transfer all that piece of land known as Kijabe/Kijabe Block 1/2787 to the Plaintiff and in default;
      3. That the Deputy Registrar of the honorable Court shall execute all necessary documents to facilitate registration of the Plaintiff as the absolute proprietor of Kijabe/Kijabe Block 1/2787.
      4. The Naivasha Land Registrar shall then register all that piece of land known as Kijabe/Kijabe Block 1/2787 measuring 1.01 hectares in the name of the Plaintiff.
      5. The Defendant either by himself, his agents, servants, employees or otherwise howsoever are hereby restrained from entering, ploughing, erecting any structure, or in any other way interfering with the Plaintiff’s peaceful and quiet possession or otherwise howsoever of all that parcel of land known as Kijabe/Kijabe Block 1/2787.
      6. Each Party shall bear its own costs.

It is so directed.

Dated and delivered via Microsoft Teams at Naivasha this 22nd day of May 2025.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE

    DAVID MWANGI GITAU VS DOMINIC NJENGA KARUTHI DAVID MWANGI GITAU VS DOMINIC NJENGA KARUTHI