- Plaintiffs/ Applicants brought this Originating Summons dated 27th August 2019, against the Defendant/Respondent herein Peter Muchoki Njoroge, wherein they sought for the determination of the following questions; -
- Whether the Plaintiffs/ Applicants are to be declared the proprietors of part of the parcel of land number Kakuzi/ Kirimiri Block 9/ 925, by virtue of purchase and adverse possession of the said parcel for a period prescribed for the in the Limitation of Actions Act, Cap 22 Laws of Kenya.
2. Whether the Land Registrar is to be directed that the order made herein shall be an instrument of transfer of ownership of part of land reference number Kakuzi/ Kirimiri/ Block 9/ 925, from the Defendant/Respondent to the Plaintiffs/Applicants herein.
3. Whether the Defendant/ Respondent is to be restrained from entering, interfering and /in any manner whatsoever alienating the land reference number Kakuzi/ Kirimiri/ Block 9/ 925, until the hearing and determination of the matter.
4. Whether the costs are to be in the cause.
2. This Originating Summons is supported by the Supporting, two Supplementary Affidavits of Joshua Ngugi Kabere, sworn on 27th August 2019, and 13th October 2020, and 24th July 2023, respectively.
3. In his supporting Affidavit, the deponent averred that the Defendant/ Respondent is the vendor or seller of the land parcel herein being No. Kakuzi/ Kirimiri/ Block 9/ 925, which the Plaintiffs purchased in the year 2003, upon payment of the full purchase price. Further, that the Defendant has declined to transfer the said land to the Plaintiffs.
4. It was his averment that vide different sale agreements entered into and signed with the Plaintiffs in the year 2003, the Defendant herein undertook to sell the suit land to the Plaintiffs. He annexed the said sale agreements as JNK 1a and b.
5. He also averred that they attended Land Control Board for consent to subdivide, wherein the said proprietor attended together with the purchasers, and the subdivisions were consented to on 15th March 2005, as is evident from JNK2. That each of the purchaser had purchased and paid for 1 acre out of the suit property.
6. Further, that the said sale agreements were signed in the presence of witnesses, and after the signing and payment of the purchase price, the land was demarcated by Thagishu and Associated Licenced Land Surveyor, but the Mutation was never registered, as the vendor, who is the Defendant herein failed to cooperate, as is evident from JNK3.
7. He contended that from the date of purchase, to the time of filing the suit, they had built residential houses wherein they have resided since then, but the said vendor has not facilitated the registration of the said subdivisions.
8. That even after seeking assistance from several authorities and offices, the vendor, who is the Defendant herein has declined to facilitate the said transfers and registrations.
9. He urged the court to allow the Land Registrar to effect the cancellation of the mother title and thereafter to register the subdivisions in names of the purchasers as per their respective sale agreements.
10. In his Supplementary Affidavit, the deponent alleged that the purchasers were five in number namely Joshua Ngugi Kabere, Esther Ndunge Musyimi, Hellen Awino Okumu as joint purchasers with Lucy Njoki Ngigi, and Isaac Ndungu Mburu.
11. He urged the court to invoke the objective of the overriding interest, and defend justice, but not look at technical issues. It was his averments that his father was the late Jeremiah Kabere Mucumari, who used to accompany him through the transaction process, but he never bought the land nor become a caretaker of the suit land.
12. It was his further averments that they sought the help of the Office of the President through the area Chief, who wrote a letter which was marked as JA1. It was his contention that the Defendant is trying to obtain by false pretenses and has denied them the mother title so that they can have their respective parcels of land registered in their names.
13. This Originating Summons is opposed by the Defendant herein, who filed a Defence, Counter-claim and Replying Affidavit dated 27th May 2020, and denied all the allegations made in the Originating Summons. He contended that the Plaintiffs herein are strangers to him.
14. Further, he alleged that the contracts of sale of the suit property are strange to him, and the signatures thereon are not his and are forgeries. He also denied ever attending the Land Control Board for any consent as alleged by the Plaintiffs.
15. In his Counter- claim, the Defendant alleged that if the Plaintiffs are in occupation of the suit property, then they have occupied the same unlawfully, and are thus trespassers and should give vacant possession to the himself.
16. Consequently, the Defendant prayed for dismissal of the Plaintiffs’ suit, vacant possession of the suit land, mesne profits and costs of the suit.
17. In his Replying Affidavit dated 27th May 2020, the Defendant averred that the Plaintiffs are not entitled to the orders sought in their claim as it lacks merit.
18. He denied ever entering into any sale agreements with the Plaintiffs herein and he also denied ever meeting the Plaintiffs or knowing them at all.
19. It was his averment that the suit land Kakuzi/ Kirimiri/ Block 9/ 925, is jointly registered in his name and Peter Mwangi Gitubia, who has not been joined in the suit.
20. He contended that he has perused the sale agreements by the Plaintiffs and he is a stranger to them, since they are forgeries as he did not sign the signatures thereon, and the said signatures have been forged and are false.
21. The deponent denied ever executing any of the sale agreements referred to by the Plaintiffs, and he also denied receiving the money mentioned by the Plaintiffs. It was his contention that he did not have intention of selling the suit property, and therefore the documents are false.
22. The Defendant/ Respondent also contended that he is aware that for such transaction, the consent and participation of his other co- registered owner was required in such a transaction, and therefore, he would not have ignored the requirements of entering into a contract without the knowledge of the registered owner.
23. He further denied ever attending the Land Control Board for any Consent as alleged by the Plaintiffs, and it was his contention that he was a stranger to the said allegations.
24. Further, that he has never instructed a land surveyor to demarcate the suit land as alleged, and the mentioned Thagishu Associates Licenced Land Surveyors, are stranger to him. That he did not sign the Mutation Forms as adduced by the Plaintiffs.
25. The Defendant/Respondent further contended that the 1st Plaintiff/Applicant could have been in occupation of the suit land by virtue of being a son to late Jeremiah Kabere Mucumari, who was a caretaker of the suit land, and upon the demise of the said caretaker, the Plaintiffs/Applicants could have continued to occupy the suit land without the permission of himself and the co registered owner.
26. He alleged that he was surprised that the trust he bestowed upon the 1st Plaintiff/Applicant has been breached by his intention to deprive the Defendant/Respondent and his co-owner of the suit property, through this false claim.
27. He also contended that the trust and good will that he had with the 1st Plaintiff/Applicant’s deceased father, and the extended family members of the late Jeremiah Kabere Mucumari(deceased), has been abused and he sought for on order that the Plaintiffs/ Applicants do vacate the suit property and also pay mesne profits
28. He urged the court to dismiss the Plaintiffs’ suit with costs and that they should be ordered to vacate the suit land forthwith, as prayed in his Counter- claim.
29. The 1st Plaintiff Joshua Ngugi Kabere filed another Supplementary Affidavit dated 24th July 2023, and averred that upon purchase of the suit land, the Plaintiffs/ Applicants went ahead and built permanent houses wherein they live with their families. He annexed photographs of the said houses as JSUPP1
30. Further, that upon completion of their houses, he went ahead and planted trees and fruit trees for their future use by his family. He annexed photographs to that effect as JSUPP 1,2,3 &4.
31. It was his further averment that since then, he has consistently done crop production on the suit land for Agri- business and family use as is evident from annexture J SUPP2,3 &4
32. That in the year 2021, he lost his wife, and upon her death, she was buried on the suit land as is evident from J SUPP 5.
33. It was his further contention that he has developed the suit land on the basis that he purchased the same, since there is consent from the local Land Control Board and subdivision has been done. However, the Defendant has declined to release the mother title to facilitate mutation of the suit land.
34. He therefore urged the court to allow the order of compelling the Land Registrar to register the mutation and issue title deeds to the Plaintiffs herein.
35. After several Pre-trial conferences, the matter proceeded for hearing via viva voce evidence, wherein the Plaintiffs gave evidence for themselves and called one witness. The Defendant on his part gave evidence for himself and called no witness.
PLAINTIFFS’ CASE
36. PWI Joshua Ngugi Kabere from Ithaanga area testified that he is a boda boda rider and knows the Defendant herein. He adopted his witness statement as his evidence in chief.
37. It was his evidence that the Defendant herein Peter Muchoki Njoroge, sold one acre of land to him in 2003. It was his further evidence that he gave the Defendant ksh 70,000/= and they entered into a sale agreement. He produced the sale agreement as an exhibit.
38. Further, that the Vendor, who is the Defendant took the purchasers to the Land Control Board in 2005, and a consent to subdivide was issued. He produced the LCB Consent, as an exhibit.
39. He alleged that he has built on the suit land where he has lived with his family since then. Further, that his wife died in the year 2021, and she was buried on the suit land. He produced the death certificate as an exhibit.
40. He also testified that it was his late father who took him to the Defendant, Peter Muchoki Njoroge, who worked at the Ministry of Finance then, and he agreed to sell the one acre to him. However, that for the last 20 years, the Defendant has not issued him with the title deed.
41. Upon cross exam by counsel for the Defendant, he confirmed that the suit land is owned by the Defendant Peter Muchoki Njoroge, and Peter Mwangi Gitubia as joint owners. However, it was his evidence that he never gave any money to Peter Mwangi Gitubia at all.
42. It was his further evidence that the search produced in court shows that Peter Muchoki owns 2 acres of the suit land. However, the said Peter Muchoki Njoroge, sold to him 1 acre, further he sold 1 acre to Isaack Mburu, 1 acre to Lucy Njoki and 1 acre to Esther Ndunge. Therefore, in total Peter Muchoki, the Defendant herein sold 4 acres, though he is only entitled to 2 acres, from the suit land.
43. He also confirmed that Peter Muchoki Njoroge, the Defendant herein appeared at the D.O Office alone, and that the consent to transfer was genuine. That though Peter Muchoki Njoroge, the Defendant, conned him, he did not report the matter to the police nor complain about his action to anyone.
44. Further, he claimed that he paid ksh 70,000/= to Peter Muchoki, in the presence of his father, and another witness called Samuel Kamande. He insisted that he has paid all the purchase price of ksh 70, 000/= to Peter Muchoki, the Defendant herein.
45. On the application to Land Control Board, he confirmed that the same has not been signed, but the name of Peter Muchoki is on the LCB Form, but his identity card number is not indicated. He also stated that he was taken to the Land Control Board, by his father, as he was only 24 years then.
46. When asked on whether he lives on the suit land, he testified that he has no photographs to show that he has built on the suit land and that he utilises the same.
47. PW2, Esther Ndunge Musyimi from Ithaanga area, told the court that she works for Delmonte Farm as a casual labourer. It was her evidence that she bought 1 acre of land from Peter Muchoki, the Defendant herein at a price of ksh 70,000/=, in the year 2003.
48. It was her testimony that she entered into a sale agreement on 12th June 2003, and she paid the money in cash, but in two instalments of ksh. 42,000/= and later ksh. 28,000/=. That the first instalment was paid on 12th June 2003, but she could not remember when she paid the last instalment.
49. Further, that on the date of purchase, she had a witness by the name of Alphonse Muthama, who is a witness herein. Further, that she lives on the suit land where she has built a home and lives thereon with her 6 children.
50. That her claim was for the Defendant to give her a title to her parcel of land, which she bought and she owns, and the Defendant has refused to transfer the said 1 acre that she purchased from him. To her, she has acquired the land by adverse possession, as she has been on the suit land for long.
51. Upon cross-exam by counsel for the Defendant, she insisted that Peter Muchoki Njoroge, the Defendant herein sold the said land to her, and they both signed the sale agreement. It was her evidence that she paid ksh 42,000/= to Peter Muchoki in Nairobi, and she was in company of her father Boniface Musyimi, and her father also signed the sale agreement.
52. Upon further cross examination, she alleged that her father signed the sale agreement on her behalf, as she was at her place of work and had not been given permission. However, she alleged that she met the Defendant at the Land Control Board Offices, and her father took her to the Board, in 2003.
53. Further, she stated that Alphonse Muthama was the land broker used by Peter Muchoki to obtain buyers, but they met Peter Muchoki at the Land Control Board, for consent to subdivide and transfer. However, she could not remember the year that they went to the Land Control Board.
54. She also confirmed that the suit land is registered in the name of two persons, but they have only sued Peter Muchoki only, as he is the one who sold the land to them, and they never met the other registered owner.
55. PW 3 Alphonse Mukeku Muthama from Kakuzi Ithaanga area, told the court that Esther Ndunge, the 2nd Plaintiff herein is his neighbour. He adopted his Affidavit as his evidence in chief and further stated that Esther’s father called him on 12th June 2003, and he accompanied him to take money to Peter Muchoki, the Defendant herein, who was based at Anniversary Towers. Further that one Kamande was also present.
56. It was his evidence that they went to Monopoly Trade Offices, and they met Peter Muchoki, and they paid him the money. Further, that they signed an agreement, after they gave Muchoki ksh 40,000/= that Esther was to pay the balance of ksh. 30,000/= at a later date. However, Esther paid ksh 30,000/= by end of July 2003.
57. That after Muchoki was paid the balance of ksh 30,000/=, he appeared before the Land Control Board, and Pw3 was a witness. It was his evidence that the Plaintiffs have paid all the purchase price. He adopted his witness statement as part of his evidence.
58. On cross exam by counsel for the Defendant, he confirmed that he was with Kamande, and the father to Esther Ndunge when they went to Nairobi to pay the money to Peter Muchoki. It was his evidence that Esther Ndunge(Pw2), did not go to Nairobi with them, but she joined them at the Land Control Board.
59. He further stated that even if the Chief’s letter was to the effect that Peter Muchoki had refused to appear before the Land Control Board, it was his evidence that Muchoki appeared the first time before the Board, but refused to appear the 2nd time.
60. Further, that the first Land Control Board meeting was for consent to subdivide, and the 2nd Board was for consent to transfer, and Peter Muchoki appeared for 1st Board of subdivision, but declined to appear for the 2nd Board for transfer.
61. On further cross exam, he confirmed that he signed the sale agreement on behalf of Peter Muchoki, in respect of the sale agreements for Lucy Njoki and Okoth. That he was informed by Kamande that Peter Muchoki had suggested that he signs the sale agreements on his behalf. He however said he did not have Power of Attorney from Peter Muchoki to sign on his behalf.
62. He also confirmed that he saw the Land Control Board Consent and that Thagishu Land Surveyors subdivided the land, and since Peter Muchoki was busy, he did not appear, and the consent was given by Kamande. He confirmed that subdivision was done in the absence of Peter Muchoki.
DEFENDANT’S CASE
63. DW1, Peter Muchoki Njoroge, the Defendant adopted his witness statement dated 12th September 2023. He also produced his list of documents as D EXHIBITS 1-3. He urged the court to dismiss the Plaintiffs’ claim and allow his Counter- claim.
64. He further told the court that he did not know the 2nd Defendant herein and only saw her in court. That he saw the 1st Plaintiff for the first time on 25th June 2019, when he served him with a Demand letter from their Advocates. That the letter requested him to transfer the land to the Plaintiffs.
65. He denied ever selling his land to the Plaintiffs, but he admitted that knew the father to the 1st Plaintiff, and he did not sell the land to him. It was his evidence that the suit land is registered in the names of two persons. Further, that the father to 1st Plaintiff was only a caretaker of the suit land and he did not sell to him the said land.
66. It was his evidence that he did not sell the land to any of the Plaintiffs herein, and he never gave Alphonse Muthama any Power of Attorney, and that the said Muthama(Pw3) is a fraudster, who sold his land without his authority. He also denied ever meeting Muthama, and if he received any money on his behalf, then he never delivered it to him. He also stated that the other registered owner is not a witness for the Plaintiffs to confirm that he sold the land in question.
67. On cross exam by the Plaintiffs, he insisted that he did not sell the suit land to the Plaintiffs. He confirmed that he allowed the 1st Plaintiff’s father to use the suit land, and he was a caretaker of the suit land. He denied ever selling the land to the Plaintiffs herein. It was his evidence that even if 1st Plaintiff has been on the suit land for over 20 years, then the said entry was with his permission, as he allowed his father on the suit land.
68. On being asked if he saw 2nd Plaintiff at the Land Control Board, he denied ever being at the said Board and also denied ever seeing her in his office. He also denied that the 2nd Plaintiff has lived on his land for over 20 years. It was his evidence that he saw the 2nd Plaintiff for the first time in court, and he denied ever selling the land to her.
69. On re-exam, he denied ever selling his land to the father of the 1st Plaintiff. He clarified that the father of 1st Plaintiff entered the suit land with his permission.
70. The parties thereafter filed written submissions. The Plaintiffs filed their submissions on 6th November 2023, and confirmed that they were acting in persons. They submitted that they did purchase the suit land from the Defendant who was known to them. Further, that the sale of this land was in public domain and that is how they learned about the sale.
71. They submitted that as per their evidence in court, they purchased their respective portions of land and then started subdivisions and the transfer procedure. That they attended the Land Control Board, wherein they were issued with consent, and the Defendant had attended the said Land Control Board and gave his consent.
72. It was their submissions that they have lived on the suit land for over 15 years and they have acquired the suit land by virtue of adverse possession. They relied on the case of Wilfred Kegonye Babu vs Henry Mose Onuko (2019) eKRL, which quoted the case of Wambugu vs Njuguna(1983) KLR 172, where the court held as follows;
“where the claimant is the purchaser under a contract of sale of land….the possession can only therefore become adverse once a contract is repudiated’’ The court further stated, “ where the claimant pleads the right the right under an agreement and in the alternative seeks an order based on adverse possession, the rule is; the claimant possession is deemed to have been adverse to that of the owner after the payment of the last instalment of the purchase price .The claimant will succeed under adverse possession upon occupation for at least twelve years after such payment’’.
73. They also relied on the of Catthy Alucia Jebor Kiplagat vs Vincent Komen Krelnut (2018) eKLR, where the court held;
“adverse possession can be claimed where registered owner fails to complete land sale process to frustrate the buyer who is in possession and occupation of the suit land.”
74. The Plaintiffs urged the court to allow their case.
75. The Defendant filed his submissions on 24th November 2023, through Law Firm of Njoroge Nganga & Co Advocates and set out three issues for determination, and further submitted that the Plaintiffs have not proved their case on the required standard of balance of probabilities.
76. On whether the Plaintiffs have any proprietary interests or adverse interest over the suit property, the Defendant relied on section 26 of the Land Registration Act, and submitted that he is a joint registered proprietor of the suit land. That the 1st Plaintiff took advantaged bestowed upon his father to claim adverse possession.
77. For the above submissions, he relied on Section 24 of the Land Registration Act, and the case of Lengare Ole Ngape vs Mpaa Ole Damo & another( 2019) eklr, where the court held;
“While section 24(a) of the Land Registration Act provides that: ‘Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;
In reference to the legal provisions cited above, I find that the Certified Certificate of Official Search produced by the Plaintiff in respect of the suit land is conclusive evidence of ownership of the same.”
78. On whether the claim herein is tenable without the joinder of Peter Mwangi Gitubia, the co- owner of the suit property, the Defendant relied on the case of Housing Finance Company of Kenya vs Faith Kimemia & Another (1998) eklr, where the court held;
“ Order 1, rule 10 of the Civil Procedure Rules provides for addition of a party to a suit so that his presence before the court may enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit to enable the court to determine the real matters in dispute.”
79. It was his submissions that the suit property herein is jointly owned by himself and one Peter Mwangi Gitubia, and non- joinder of the co-owner militates against the Plaintiffs herein on a claim of adverse possession.
80. On whether the Plaintiffs have approached the court with clean hands, it was the Defendant’s submissions the Plaintiffs had a duty to make full disclosure of all material facts within their knowledge, and since they failed to make full disclosure, they are deprived of any advantage that they may have obtained.
81. For the above submissions, the Defendant relied on the case of Zacharia Wambugu Gathimu & Another vs John Ndungu Maina (2019) eklr where the court held;
“Secondly the Plaintiffs’ case is caught up by the equitable maxim that he who comes to equity must come with clean hands. That the Plaintiffs seek for equity before the court yet they have not demonstrated that their past record in dealing with the Deceased’s estate had been clean. They cannot therefore be entitled to the reliefs so sought.”
82. The Defendant submitted that the suit land could not have been sold without the consent, and in the presence of his co-owner, Peter Mwangi Gitubia.
83. On whether the Plaintiffs actions amount to trespass, it was submitted that the Defendant is the registered owner of the suit land and has not given permission to the Plaintiffs to enter into the said suit land. Reliance was placed in the case of Joshua Ngeno vs Kenya Power & Lighting Co Ltd & Another(2021) eKLR, where the court held;
“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”
84. On whether the Defendant is entitled to mesne profits, reliance was placed in the case of Cleophas Wanyonyi vs Walter Otieno (2019) eKLR; and the court as follows;
“Measure for mesne profit was described in the Privy Council decision in Invergue Investments v Hacketh (1995) 3 All ER 842 cited with approval in the Kenya Hotel Property Ltd case (supra) as follows:
“This is form of an ordinary claim for mesne profit, that is to say, a claim for damages for trespass to land….The question for decision is the appropriate measure of damages.”
85. The Defendant urged the court to dismiss the Plaintiffs’ case and allow his Counter claim, by ordering the Plaintiffs to give vacant possession in respect of the suit land Kakuzi/ Kirimiri/ Block 9/ 925, and in default eviction to issue.
86. The court has carefully considered the available evidence, the rival written submissions and the relevant provisions of law, and finds as follows;
87. There is no doubt that the claim herein is over land parcel No. Kakuzi/ Kirimiri/ Block 9/ 925, which is in the joint names of Peter Muchoki Njoroge and Peter Mwangi Gitubia, who became registered owners on 2nd February 1990. The said registration was under the Registered Land Act, Cap 300(now repealed) regime.
88. As the registered owners, section 27 of the said Registered Land Act(repealed), gave them absolute rights and privileges appurtenant over the said parcel of land, which rights could only be defeated as provided by the Act. The above position is found in section 28 of the said Cap 300(repealed).
89. The Plaintiffs herein have pegged their claim for adverse possession on allegation that the Defendant herein sold to them each one(1) acre from the suit land for ksh 70,000/= for each acre in 2003. The Plaintiffs have alleged that they paid the full purchase price each in two instalments ,and thereafter, they took possession of the suit land.
90. However, on his part, the Defendant has denied ever selling the suit land to the Plaintiffs. He denied ever signing the sale agreements that were referred to by the Plaintiffs. He produced a Report from the document examiners, which stated that the signatures on the sale agreements were not signed by him. He also denied receiving any of the purchase price money as alleged by the Plaintiffs.
91. The Defendant contended that the 1st Plaintiff entered into the suit land by virtue of being the son of one Jeremiah Kabere Mucumari(deceased), who was the caretaker of the suit land. That if 1st Plaintiff is in occupation of the suit land, then the said occupation is by his permission, and such occupation cannot be adverse to the owner, who has given permission.
92. From the above analysis, the evidence herein is that the Plaintiffs have alleged, and the Defendant has denied the allegations made by the Plaintiffs. It is trite that he who alleges must prove. It is evident that the Plaintiffs herein are the ones who have alleged, and the burden of proof is upon them.
93. Sections 107, 108 and 109 of the Evidence Act are very clear on the issue of burden of proof.
“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
- 94. There are plethoras of cases on who bears the of burden of proof in Civil cases, and when the evidential burden of proof can shift. See the case of Samson S. Maitai & Ano….Vs…African Safari Club Ltd & Ano. (2010) eKLR, where the Court held that: -
“…according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.
95. See also case of Mbuthia Macharia vs Annah Mutua & Another [2017] eKLR, discussed the burden of proof and stated thus:
“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant.”
96. The backbone of the Plaintiffs’ claim is the alleged sale of the suit land to the Plaintiffs by the Defendant, which allegations the Defendant has denied.
97. Having considered the available evidence, the court finds the issues for determination are;
i). Whether the Plaintiffs have proved that there were valid sale agreements between them and the Defendant herein.
ii). Whether the Plaintiffs have proved a Claim for adverse possession.
iii). Who should bear costs of the suit?
98. From the evidence adduced in court, the Plaintiffs alleged that the Defendant herein sold to each one of them one (1) acre from the suit land, and after they paid the purchase price and obtained the Land Control Board Consent, the Defendant failed to transfer their respective portions to each of the Plaintiffs, and thus this suit.
99. For one to claim that a proprietor has sold his parcel of land to him, there are legal requirements that must be fulfilled. The most crucial one is availability of a sale agreement, which sale agreement, must be in writing., which sale agreement identifies the land to be sold, the acreage or size, the purchase price and mode of payment. Further the said sale agreement, must be signed and attested to by witnesses who were present.
100. The above are the requirements of a valid contract for sale of land as provided by section 3(3) of the Law of Contract Act, which states as follows;
“Certain contracts to be in writing
(3) No suit shall be brought upon a contract for the disposition of an interest in land unless— (a) the contract upon which the suit is founded— (i) is in writing; (ii) is signed by all the parties thereto; and
(b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.
(7) The provisions of subsection (3) shall not apply to any agreement or contract made or entered into before the commencement of that subsection.”
101. Further the above provision of law is found in section 38(1) of the Land Act, which states;
- Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land unless,
(a) the contract upon which the suit is founded—
- is in writing;
- (ii) is signed by all the parties thereto; and
(b) the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.
102. In the case of Nelson Kivuvani vs Yuda Komora & Ano. Nairobi Hccc No. 956 of 1991, the court- held: -
“The agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligation express or implied of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”
103. Therefore, before delving into the issue of adverse possession, this court must first establish, whether the parties herein did enter into a valid sale agreement, and that the full purchase price was paid, and after the last instalment was paid, the Defendant refused/declined to transfer the land to the Plaintiffs.
104. The Plaintiffs have prayed to be declared as the proprietors of the suit land by virtue of purchase and adverse possession. The Plaintiffs have to prove such purchase, before they can be declared to have become entitled to such land.
105. It is evident that the Defendant herein has denied ever selling the suit land to the Plaintiffs. The Plaintiffs had alleged that the Defendant herein, Peter Muchoki Njoroge, sold the suit land to five persons. The suit land is 4 acres, and that the Defendant allegedly sold the whole 4 acres to the five purchasers. However, the suit herein is by the two Plaintiffs, and the other alleged purchasers, were not made parties to the suit, nor were they called as witnesses.
106. The Plaintiffs herein alleged that the Defendant Peter Muchoki Njoroge, sold the land to them in 2003. The 1st Plaintiff produced his sale agreement allegedly entered into on 10th July 2003, between Joshua Ngugi Kabere and Peter Muchoki Njoroge, who are the parties herein. This sale agreement states that Mr Njoroge has agreed to sell one acre of land from Kakuzi East 925, to the 1st Plaintiff.
107. It is clear from the cited case law, that the sale agreement, must clearly identify the land to be sold. From the Land Control Board Application Form, and the Certificate of Official Search, produced in court as exhibits, they show that the land in issue is Kakuzi/ Kirimiri Block 9/ 925. However, the description of the land being sold in the sale agreements is Kakuzi East 925. That description is not for the suit land herein that is owned by the Defendant and his co-owner as per the Certificate of Official Search.
108. The above was also the same description given in the agreement for sale produced by Esther Ndunge the 2nd Plaintiff herein. Therefore, the description of the land that was allegedly sold to the Plaintiffs herein, does not meet the description of the parcel of land owned by the Defendant herein.
109. Though the 1st Plaintiff alleged that he is the one who purchased and paid for the suit land, the Defendant produced a demand letter written to the Defendant by the Plaintiffs’ Advocates dated 20th June 2019, wherein it was alleged that the suit land was purchased by the 1st Plaintiff’s father, and since the said father was deceased, the request was to have the suit land registered in the name of the 1stPlaintiff.
110. Therefore, there was inconsistence in the evidence produced by the 1st Plaintiff on who purchased the suit land, and the sale agreement produced as exhibit by the 1st Plaintiff.
111. In her evidence, the 2nd Plaintiff alleged that she did not attend the meeting in Nairobi when the first initial instalment was allegedly paid to the Defendant because she was not given permission by her employer. She alleged that the sale agreement was signed by her late father Boniface Musyimi, for Esther Ndunge. Indeed, the sale agreement is not signed by her. If Pw2 did not attend the meeting where there was allegedly handing over of the money or first instalment to the Defendant, how could she tell with certainty that the said money was paid or was given to the Defendant?
112. The Defendant alleged that he did not sign the sale agreements produced in court as exhibits. He produced a Report from the document examiner which confirmed that the signatures on the sale agreements were not made by the Defendant. The Plaintiffs did not avail any evidence to dispute this allegation. If the Defendant did not sign the sale agreements, how can the court attribute him to the sale of the suit land?
113. The Plaintiffs further testified that the Defendant appeared before the Land Control Board for consent to transfer, and the said Land Control Board gave its consent. The Defendant denied ever appearing before the said Board. Since it is the Plaintiffs who have alleged and there is denial by the Defendant, the Plaintiffs ought to have called witnesses from the said Land Control Board, to confirm whether indeed, the Defendant appeared before it or not.
114. It was also the evidence of the Plaintiffs that the subdivision was done by Thagishu Licenced Land Surveyors, who were instructed by the Defendant herein. The Defendant denied ever giving such instructions. With the said denial, the logical thing to do was for the Plaintiffs to call a witness from the said Thagishu Licenced Surveyors, to testify on who actually gave them instructions to subdivide the land.
115. The Plaintiffs’ witness Alphonse Muthama, also testified that one Stephen Kamande was the one who signed some of the sale agreements, and even appeared before the Land Control Board, on behalf of the Defendant. There was no evidence of any Power of Attorney, produced by the said Alphonse Muthama, to confirm that indeed this Stephen Kamande acted for the Defendant. This is because the Defendant has denied ever instructing anyone to act on his behalf in the alleged transactions, and further evidence was required to confirm such instructions.
116. The Plaintiffs have alleged that they purchased the suit land from the Defendant, and the Defendant has denied ever selling the land to them. With that denial, since no evidence was availed to link the Defendant with the signing of the sale agreements, receipts of the money and appearing before the Land Control Board, this court finds and holds that even if there was any sale of the suit land to the Plaintiffs, the said sale was not done by the Defendant herein, who is one of the co-owners of the suit land.
117. It is evident that the Plaintiffs herein gave very inconsistent evidence to support their claim. The letter dated 13th September 2020, from the Chief of Kakuzi Sub-location was to the effect that the Defendant herein after selling the suit land refused to appear before Land Control Board, for consent to transfer. Whereas the Plaintiffs alleged and testified that the Defendant appeared before the Land Control Board in 2005, for consent to subdivide, but declined to appear for the 2nd Board for Consent to transfer. This evidence is a contradiction to the allegations made by the Chief of Kakuzi. There is indeed inconsistence of the evidence.
118. Therefore, from the available evidence, the court finds and holds that there is no sufficient evidence to prove that the sale agreements produced in court were in compliance with the requirements of a valid contract for sale of land. The said sale agreements are not valid sale agreements, which are enforceable herein.
119. Consequently, this court cannot find and hold that the Plaintiffs are entitled to be declared as the proprietors of the suit land by virtue of purchase of the suit land from the Defendant herein.
120. On the next issue of whether the Plaintiffs are entitled to the suit land by virtue of adverse possession, this court finds as follows; As stated above, the Plaintiffs claim is that they entered into the suit land due to purchase of the said land after signing and entering into sale agreements with the Defendant. The court has found and held that the said sale agreements are invalid, and it is not very clear that they were entered with and were signed by the Defendant herein.
121. However, the court will consider the available evidence and then determines whether the Plaintiffs have met the threshold of being declared the owners of the suit land by dint of adverse possession.
122. As submitted by the Plaintiffs, adverse possession is a situation where one obtains a legal title to another’s parcel of land by reasons of actual, open, continuous and exclusive possession of the registered owner’s parcel of land. In this country, the period of exclusive occupation is 12 years.
123. According to Halsbury’s Laws of England, 4th Edition Volume 28 para 768, what constitutes possession is a question of facts. It states as follows;
“No right to recover land accrues unless the land is in the possession of some person in whose favour the period of limitation can run. What constitutes such possession is a question of fact and degree. Time begins to run when the true owner ceases to be in possession of his land.”
124. Further, it is evident that adverse possession is one of the ways of acquiring land in Kenya, as can be seen from section 7(d) of the Land Act, which states as follows;
“Methods of acquisition of title to land Title to land may be acquired through—
(a) allocation;
(b) land adjudication process;
(c) compulsory acquisition;
(d) prescription;
(e) settlement programs;
(f) transmissions;
(g) transfers;
(h) long term leases exceeding twenty-one years created out of private land; or
(i) any other manner prescribed in an Act of Parliament.”
125. The statutory provisions that underpin this doctrine of Adverse possession are set out in the Limitation of Actions Act, Cap 22 Laws of Kenya, and also the Land Registration Act.
126. Sections 7, 13(1), and 38 of the Limitation of Actions Act, Cap 22 LOK, provides as follows;
“7. Actions to recover land
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.
13. Right of action not to accrue or continue unless adverse possession
(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.
38. Registration of title to land or easement acquired under the Act
(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 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.
(2) An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.
127. Since the Plaintiffs alleged that they entered into the suit land in 2003, section 30(g) of the Registered Act, Cap 300 LOK( repealed) comes into play. The provisions of this section 30 of Cap 300(repealed) have been mirrored in section 28 of the Land Registration Act, which section deals with overriding interests on land. For adverse possession, the same is provided in section 28(h), which provides;
“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register —
(h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription”.
128. The right to adverse possession does no accrue automatically. As provided by section 38 of Limitation of Actions Act, the claimant has to apply to court for orders of adverse possession through an Originating Summons, and the Plaintiffs herein have come to court through that procedure to assert their right.
129. The Plaintiffs have alleged that they have been in open, continuous and exclusive possession of their respective one acre each out of the suit land, from the time of purchase in 2003. This court has found and held that the said purchase cannot be linked to the Defendant herein. Therefore, the court will not hold that the entry herein was permissive through sale agreements.
130. As stated above, the burden of proving adverse possession lies with the one claiming or asserting it. See section 107 of Evidence Act. In the instant suit, the burden of proof squarely lies with the Plaintiffs herein, who had a duty to demonstrate that they have met the requirements for grant of the orders for adverse possession.
In the case of Gabriel Mbui Vs Mukindia Maranya (1993) KLR, the Court held as follows;
“The burden of proving title by adverse possession rests upon the person asserting it. This is to say the burden of proof is upon the person setting up and seeking to prove title by adverse possession. He proves it on the usual standard of proof in civil cases namely, on a balance of probability. What does he prove? He proves three adequacies: continuity, publicity, and extent. For to prove title by adverse possession, it is not sufficient to show that some acts of adverse possession have been committed: the possession must be adequate in continuity, in publicity and in extent, to show that it is adverse to the rightful, paper title owner.”
131. Further, in the case of Kasuve vs Mwaani Investment Ltd & 4 others 1 KLR 184, the Court of Appeal held as follows;
“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”.
132. For this court to determine whether the Plaintiffs have met the threshold for adverse possession, it has to seek answers to the following;
- how and when did the Plaintiffs/Applicants acquire possession of the suit land;
- what was the nature of their possession and occupation;
- how long have they been in possession?
133. It evident that for one to acquire ownership by adverse possession, the nature of the entry should be one without permission of the owner, without force and without secrecy. See the case of Samuel Kihamba v Mary Mbaisi [2015] eKLR, the Court of Appeal in Kisumu held:
“Strictly, for one to succeed in a claim for adverse possession, one must prove and demonstrate that he has occupied the land openly; that is, without force, without secrecy, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the Latin phraseology, nec vi, nec clam, nec precario. The additional requirement is that of animus possidendi, or intention to have the land”
134. Further, in the case of Mbira vs Gachuhi( 2002) 1 EALR 137, the Court stated as follows;
““… a person who seeks to acquire title to land by the method of adverse possession for the applicable statutory period, must prove non permissive or non-consensual actual, open, notorious, exclusive and adverse use by him or those under whom he claims for the statutorily prescribed period without interruption…”
135. The suit land herein is Kakuzi/ Kirimiri/ Block 9/925, although the Plaintiffs sale agreements are referring to Kakuzi East 925. It is also evident that the suit land is in the names of Peter Muchoki Njoroge, the Defendant herein and Peter Mwangi Gitubia, which registration was issued on 2nd February, 1990.
136. The Plaintiffs have alleged that they got into the suit land in 2003. The suit herein was first filed in Thika ELC in 2019. If the Court is to compute time from 2003, then that is a period of 16years, from the date of alleged entry to the date of filing the suit.
137. However, before starting to compute time, the court has to be satisfied that the Plaintiffs have established all the elements for a claim of adverse possession.
138. The court will first determine whether the Plaintiffs are in actual possession of the suit land. In the case of Sisto Wambugu vs Kamau Njuguna(1983) KLR, the Court of Appeal held as follows;
“adverse possession contemplates two concepts; possession and discontinuance of possession and that further whether the claimant proved that the title holder has been dispossessed, or has discontinued his possession of the land in question for the statutory period.
139. Further, the above principle was also elaborated in the case of Simon Nganga Njoroge vs Daniel Kinyua Mwangi (2015) eklr, where the court while applying the principles espoused in the case of Wambugu vs Kamau(1989) KLR 173, where the court held; … where a claimant pleads the right to land under an agreement and in the alternative seeks an order based on adverse possession (like the Plaintiff herein has done), the rule is; the claimant possession is deemed to have become adverse to that of the owner after the payment of the last instalment of purchase price and that the claimant will succeed under adverse possession upon occupation for the last 12 years after such payment….”
140. From the above case law quoted, it is evident that adverse possession is proved by facts, that is by calling evidence to prove that the claimant did enter the suit land, is in possession and occupation and that the said occupation is inconsistent with possession of the owner.
141. Further, the claimant must claim against the registered owner. The Plaintiffs herein did not produce an abstract of title as their exhibits. They also did not produce a certificate of official search. All that the Plaintiffs produced were the sale agreements and APPLICATION TO LAND CONTROL BOARD FOR CONSENT.
142. A claim of adverse possession is to the registered owner, since the claim seeks to extinguish the title of the registered owner by virtue of having been in possession for over 12 years. Ownership can only be proved by production of certificate of title.
143. Order 37 rule 7 of the Civil Procedure Rules provides;
“(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.
(3) The court shall direct on whom and in what manner the summons shall be served.”
144. It is clear that the Plaintiffs did not annex the certified copy of title to support their claim. However, this court finds that the defendant did not deny existence of the land. He produced certificate of official search and the said Certificate of official search show that the land is jointly owned by the Defendant and Peter Mwangi Gitubia. The Plaintiffs have not sued the said Peter Mwangi Gitubia as a Defendant. His ownership of the suit land cannot be extinguished without giving him a hearing. Peter Mwangi Gitubia, cannot be condemned unheard. That would be against the rule of natural justice.
145. It is trite that the court cannot condemn Peter Mwangi Gitubia, who is a co-owner of the suit land unheard. The Plaintiffs are seeking for extinguishing of the title of the suit land by virtue of adverse possession. Peter Mwangi Gitubia, has not had his day in court, and therefore the title herein cannot be extinguished.
146. The doctrine of natural justice comes into play herein and this principle is espoused in the Latin maxim; ‘Audi Alteram Partem” which means; ‘’let the other party be heard, which can be translated to mean that all parties to a dispute should be allowed to be heard and present their case, thus no party should be condemned unheard. See the case of Egal Mohamed Osman vs. Inspector General of Police & 3 Others [2015] eKLR at page 7 the Court at the time referred to The Management of Committee of Makondo Primary School and Another v Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, the Ugandan Supreme Court stated as follows regarding the rules of natural justice:
“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”
147. Further, this court finds that the Plaintiffs needed to prove actual and exclusive possession of the suit land and thus dispossession of the Defendant herein. The Plaintiffs in their Supplementary Affidavits have annexed photographs of homesteads and grown trees. They alleged that they have been in exclusive possession of the suit land and have built their homesteads thereon. They did not call independent witnesses to support their claim.
148. Though the Plaintiffs produced photographs of homesteads, how could the court connect the said homesteads to the suit land? The Plaintiffs ought to have availed a Report of a Land Valuer to confirm that indeed the said homesteads are found on the suit land, thus connecting the suit land to the said homesteads and the mature trees that are seen in the photographs. Without that tangible evidence, the Plaintiffs evidence remains mere allegations, given that the Defendant denied the claim, and that the burden of proof was upon the Plaintiffs herein. Mere allegation cannot prove existence of the alleged facts. See section 108 of the Evidence Act.
149. Having found that there is no sufficient evidence to prove that the Plaintiffs are in open, actual and exclusive occupation and possession of the allegedly respective one acre each of the suit land, this court finds that the Plaintiffs have not satisfied the crucial elements for a claim of adverse possession.
150. Without evidence of exclusive possession and dispossession of the owners, the court cannot compute when time started running and the nature of entry. In fact, the Defendant had alleged that the 1st Plaintiff might have had knowledge of the land through his late father, Jeremiah Kabere Mucumari, who was a caretaker of the said parcel of land. The 1st Plaintiff did not dispute that allegations.
151. This court has carefully considered the available evidence and has come to a conclusion that being a claim for adverse possession, and the fact that the suit land is jointly owned by the Defendant and another, and the fact that the other owner, Peter Mwangi Gitubia, was not joined in the suit, then the title to the suit land cannot be extinguished without giving the said Peter Mwangi Gitubia an opportunity to be a Party in this suit, and defend his position.
152. Further, there was no extract of title annexed to the Originating Summons as provided by Order 37 rule 7 of Civil Procedure Rules, and there was no evidence of exclusive possession of the alleged one acre by each of the Plaintiff herein, and dispossession of the Defendant and his Co- owner.
153. For the above reasons, the court finds and holds that the Plaintiffs have failed to prove their case on the required standard of balance of probabilities. Consequently, the court finds and holds that the Plaintiffs suit is not merited, and the same is dismissed entirely.
154. The Defendant filed a counter- claim, wherein he sought for vacant possession of the suit land, mesne profits and costs of the Counter- claim. Just like the Plaintiffs, the Defendant had the onus of availing sufficient evidence to prove that the Plaintiffs are in occupation of the suit land, illegally and without his permission’.
155. What is not in doubt is that the Defendant herein and one Peter Mwangi Gitubia are the registered owner of the suit land. The defendant has alleged that the Plaintiffs have trespassed on the said parcel of land. However, the court has found and held that there is no evidence availed by the Plaintiffs that they are in occupation and exclusive possession of the suit Land.
156. The Defendant ought to have availed evidence showing that indeed, the Plaintiffs herein are in occupation of the suit land. The mere allegations that Plaintiffs are illegally in occupation of the suit land is not sufficient to prove any trespass by the Plaintiffs. The Defendant should have availed such evidence of photographs of the Plaintiffs residences on the suit land, or any other independent evidence of a local witness to confirm that indeed, the Plaintiffs are occupying the suit land.
157. The available evidence is not sufficient to prove the Counter- claim as filed by the Defendant herein. Consequently, this court finds and holds that the Defendants Counter- claim as contained in his Defence filed on 27th May 2020, has not been proved on the required standard of balance of probabilities. The said Counter- claim is dismissed entirely with no orders as to costs.
158. On who should bear costs of the suit, the court finds that costs are granted at the discretion of the court as provided by Section 27 of the Civil Procedure Rules. However, costs normally follow the event and are awarded to the successful litigant. The Defendant herein is the successful litigant and is awarded costs of the suit.
159. The final order of the court is that the Plaintiffs’ claim as contained in the Originating Summons dated 27th May 2019, is hereby dismissed entirely with costs to the Defendant. Equally, the Defendant’s Counter-claim dated 27th May 2020, is dismissed entirely, with no orders as to costs.
It is so ordered.
Dated, Signed and Delivered Virtually in Muranga this 4th day of April 2024.
L. Gacheru
Judge
Delivered online in the presence of;
Absent - 1st Plaintiff/Applicant
Esther Ndunge (present in person) - 2nd Plaintiff/ Applicant
M/S Nzilani H/B for Mr Nganga for Defendant/ Respondent
Joel Njonjo - Court Assistant