JOSPHAT OPATI VS DAVID JOSHUA MUNALA AND JOHN FRANCIS MUSUNGU AND 1 Others

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT VIHIGA

ELC CASE NO.  E004  OF 2022 (O.S)

IN THE MATTER OF: LAND PARCEL NO.WEST BUNYORE/EBUSIEKWE/

AND

IN THE MATTER OF: LIMITATION OF ACTIONS ACT CAP 22 SECTIONS 37 AND 38

AND

JOSPHAT OPATI………………………………...PLAINTIFF/APPLICANT

VERSUS

DAVID JOSHUA MUNALA………...…1^ST DEFENDANT/RESPONDENT

JOHN FRANCIS MUSUNGU……….…2^ND DEFENDANT/RESPONDENT

ZEDEKIAH SHIUNDU……………...…3^RD DEFENDANT/RESPONDENT

JUDGMENT

1. Vide Originating Summons dated 19^th August 2022, the Applicant herein JOSPHAT OPATI who claims to have acquired title to land parcel No. WEST BUNYORE/EBUSAKAMI by adverse possession, placed the following questions before the court for determination;
2. Whether the applicant has been in occupation of LR No WEST BUNYORE/EBUSIEKWE/ and have developed and used the same peacefully for a period of over 12 years
3. Whether the Applicant’s late father one JACTON OCHILO MARAKALU deceased was in occupation of the suit land for over 12 years before his death directed that the order herein shall be an instrument of transfer of ownership to the Applicant.
4. Whether the Applicant has continued in adverse possession for a period of 12 years twelve years and an order may be issued that he be registered as the proprietor of the same in terms of sections 7, 17 and 38 of the Limitation of Actions Act.
5. That even though LR No. West Bunyore/Ebusiekwe/598 has been illegally sub divided into West Bunyore/Ebusiekwe/2112, West Bunyore/Ebusiekwe 2113 and Bunyore/Ebusiekwe/2114 in the names of the Respondents the said titles should be cancelled and title reverted to LR No West Bunyore/Ebusiekwe/598 which in the premises should be registered in the name of the applicant by virtue of adverse possession.
6. Costs of the application be provided for.
7. Any other relief be made as the honourable court may deem just to grant.
8. The Originating Summons was supported by the contents of the Supporting Affidavit sworn by the applicant and the annextures thereto.
9. The Originating Summons was opposed vide the averments contained in Affidavit in Response to Originating Summons sworn by the Respondents jointly on 20^th February 2023.
10. On 9^th March 2023 directions on the mode of disposal of the Originating Summons under Order 37 Rule 19 Civil Procedure Rules were taken that the Originating Summons proceeds as thought it had been commenced by plaint and that hearing be done through viva voce evidence.

The evidence

1. The evidence adduced by the applicant comprised of the testimonies of PW 1 and PW 2 and the exhibits they produced. PW 1 was the Applicant. He adopted the contents of his witness statement dated 3^rd May 2023 as his evidence in chief. He had stated in the said witness statement that he is a grandchild of one Aaron Marakalu and a son of Jacton Ochilo Marakalu both of whom are deceased. That land parcels number West Bunyore/Ebusiekwe/2112, 2113 and 2114 were in the names of his grandfather as at the time of the grandfathers’ death in the year 1972. That he learnt that the land parcels had been illegally and unlawfully transferred as follows West Bunyore/Ebusiekwe/2112 to John Francis Musungu No. West Bunyore/Ebusiekwe/2113 to David Joshua Munala and West Bunyore/Ebusiekwe/2114 to Zedekiah Shiundu Olume, the Defendants herein. That this made him to cause a restriction to be placed on the parcels of land.
2. That his family have severally been harassed by the Defendants who cut his trees and destroy other plants without his consent. That efforts to solve the dispute amicably have been futile. He therefore sought the intervention of the court to cancel the titles and direct that succession be done in respect of the estate of Aaron Marakalu so that he can get a share of the property on behalf of his deceased father
3. He produced exhibits in support of his case namely his national identity card, Certificate of Official Search for West Bunyore/Ebusiekwe/2114 Certificate of Official Search for West Bunyore/Ebusiekwe/2112, Certificate of Official Search for West Bunyore/Ebusiekwe/2113, copy of green card, Certificate of Death for Jacton Ochilo Marakalu and letter from office of Assistant County Commissioner Luanda Division. On cross examination PW1 testified that his grandfather had four sons. That his father lived on land parcel No. 598. That his grandfather Aaron Marakalu was the first registered owner of the land. That he has lived on the land since childhood and that his father was buried on the land. That his maize growing on the land was destroyed and that he reported to the Chief. That he is not the one who set the house which was on the land on fire. And on the re – examination he stated that there is a house which he put up on the suit land and that nobody objected to his construction of the house.
4. PW 2 was one Asitiva Marakalu who also adopted the contents of his witness statement dated 3^rd May 2023 as his evidence. He testified that he was an elder brother to the Applicant’s father. That the applicant’s father had been awarded land parcel No. West Bunyore/Ebusiekwe/598 by Aaron Marakalu. That Olume Marakalu was not given parcel number West Bunyore/Ebusiekwe/598 and that as at the time of his death the suit land was registered in the name of Aaron Marakalu. That he is not aware of succession proceedings to the estate of Aaron Marakalu. That the applicant has his home and has settled on the suit land.
5. On cross examination he stated that Olume Marakalu was given land together with Ochilo. That Olume was given the same parcel which was sub divided into two. That Ochilo as the last born took the parents compound. That Olume’s home is on the land where Josephat stays. That the Defendants live on the land parcel No. 598. That the land was divided into two by their father and Olume was given a share and Ochilo a share. That Josphat Opati lives on the suit land. That his house and crops are on the land. That the Defendants live on the share of the suit land given to their father. That the Defendants want to take the Plaintiff’s share and that is why the suit is in court. And on the re – examination he stated that both Olume and Ochilo were buried on their respective shares of the suit land when they died.
6. On behalf of the Defendants DW1 and DW2 testified and produced exhibits. DW1 was the 3^rd Defendant. He relied on the contents of the Affidavit in Response to Originating Summons sworn on 20^th February 2023 as his evidence. He had stated in the said Affidavit that the 3 defendants are grandsons of Aaron Marakalu deceased. That the deceased who had 4 sons gave his land to the sons as follows; Asitiva Marakalu, land parcel No. West Bunyore/Ebusiekwe/1910 for himself and West Bunyore/Ebusiekwe/614 to hold in trust for the father of the Applicant who was then staying in Tanzania, parcel No. West Bunyore/Ebusiekwe/598 (the suit land) to Olume Marakalu – the father of the Defendants and West Bunyore/Ebusiekwe/599 to Okula Marakalu.
7. That in 1972 the Applicant’s father came from Tanzania and settled on the suit land No. 598 which was the homestead. That in the 1980s the Defendants’ father approached Asitiva Marakalu to transfer land parcel No. West Bunyore/Ebusiekwe/614 in favour of the Applicant’s father to no avail. That in 1997 when the Applicant’s father died he was buried on the suit land because there was no option as it was the normal routine to bury dead relatives on the said land and then the family of the deceased could relocate to their land. That due to the peace they had maintained in the family they knew that the applicant will pursue his father’s land namely; West Bunyore/Ebusiekwe/614 and relocate there.
8. He testified further that the Defendants are the sons of Olume Marakalu. That land parcel No. West Bunyore/Ebusiekwe/598 was lawfully sub divided and transferred to the sons of Olume Marakalu. That it is true that the Defendants want the Applicant out of the suit land to move to parcel No. West Bunyore/Ebusiekwe/614. That the court should overlook the prayer for cancellation of the titles. That if the prayers sought by the applicant are granted the defendants will suffer much detriment and irreparable damage.
9. DW1 produced exhibits namely; Certificate of Official Search for West Bunyore/Ebusiekwe/1910, Certificate of official search for West Bunyore/Ebusiekwe/614, Certificate of search for West Bunyore/Ebusiekwe/2112, Title deed for West Bunyore/Ebusiekwe/2113, Title deed for West Bunyore/Ebusiekwe/2114, Certificate of Official Search for West Bunyore/Ebusiekwe/2113, Green card for West Bunyore/Ebusiekwe/598, Chief’s letter dated 3^rd December, 2021 and valuation report dated 22^nd December 2021
10. On cross examination he stated that the applicant’s house has been on the suit land since 1987. That it is him and his brothers who occupy the entire land and that the applicant has a structure at the corner but does not live there. That both the Applicant’s father and the Defendants’ father remained on the suit land when the other brothers moved out. That the green card does not show that there was Succession in respect of his father’s estate and that he had no evidence that Asitiva Marakalu was holding land parcel No. West/Bunyore/Ebusiekwe/ 614 in trust for the Applicant’s father
11. DW 2 was one Agnes Likholo who adopted her witness statement dated 24^th March 2023 as her evidence in chief. The contents of the witness statement were substantially the same as Affidavit in Response to the Originating Summons save that she stated that when the Applicant’s father came from Tanzania he settled on the suit land but was shown his land which Asitiva Marakalu was holding in his trust and which the applicant is to occupy. That the applicant’s father died and was buried on the suit land.  That the applicant was directed to move to his land but declined.  That the disputed land belongs to the Defendants.  On cross-examination, she stated that she knows the Applicant, that he lives in the home of Jactone Ochilo who was his father where he has a house and where he has lived for many years.  That his father Jactone Ochilo was buried on the same land where the applicant lives. That nobody stopped the burial of Jactone Ochilo on the suit land. And on re-examination, she stated that the land belonged to Olume Marakalu.

Submission

1. Written submissions dated 4^th January 2023 were filed on behalf of the applicant by the firm of Makhokha Oaka Advocates.  Counsel submitted that the grounds of the Originating Summons are that the applicant has been in occupation of land parcel known as WEST BUNYORE/EBUSIEKWE/598 for over 12 years since his childhood and has established a home thereon where he lives with his family.  That the applicant’s father was also in occupation of the suit land for over 12 years before he died.  That the plaintiff has known the suit land as his home since childhood.
2. Counsel submitted further that the plaintiff is entitled to the suit land especially on the upper part of it where he has been occupying and or living since childhood Relying on the case of Gabriel Mbui vs Mukindia Maraga (1993) eKLR where it was held that the adverse  character of the possession must be established as a fact, Counsel submitted that the plaintiff having been in continuous, exclusive open and peaceful occupation of part of the  L.R No. WEST BUNYORE/EBUSIEKWE/598 and having never been dispossessed by the Defendants or the Defendants’ action against him for over 12 years is enough to establish a character of adverse possession.
3. Counsel relied on the provisions of Section 17 of the Limitation of Actions Act and submitted that the Defendants’ titles to the land are extinguished and urged the court to cancel the titles.
4. No submissions were filed by or on behalf of the Defendants.

Issues for determination

1. From the pleadings filed, the evidence adduced and the submissions made, the following emerge as the issues for determination;
2. Whether or not the applicant has had adverse possession of the suit land;
3. Whether or not the Defendants’ title to the suit land have become extinguished by effluxion of time;
4. Whether the plaintiff is entitled to the relief sought;
5. Who pays the costs of the suit?

Analysis and determination

1. Although in the introduction of the Originating Summons the suit land was not adequately described, the contents of the rest of the Originating Summons, the Supporting Affidavit, the response by the Defendants, the evidence adduced and submissions made, left no doubt that the suit land was land parcel No. WEST BUNYORE/EBUSIEKWE/598. There was also no dispute that the suit land was registered in the name of the Defendants’ father as a first registration.  The green card produced as exhibit shows that the land was registered in the name of Olume Marakalu, the father of the defendants, on 20^th August 1970.  It was also common ground that the plaintiff’s father after staying in Tanzania for some time, came back to Kenya, entered and settled on the suit land in the year 1972.  According to the Defendants the applicant’s father was not supposed to settle on the suit land but on land parcel No. WEST BUNYORE/EBUSIEKWE/614 which Asitiva Marakalu (PW2) was holding in trust for him.  But there is no evidence that anything was done by the Defendants’ father who was the registered owner of the land then, to remove the applicant’s father from the suit land.  The evidence on record is that the applicant’s lived thereon peacefully together with his family till 3^rd March 1997 when he died (See certificate of death produced as exhibit P.5) This was a period of about 24 years of continuous, open and uninterrupted occupation. From the totality of the evidence, I find that the applicant’s had acquired rights of adverse possession to the portion of the suit land he occupied before he passed on.
2. The applicant’s case is that having been born on the suit land, he has lived thereon together with his family for the rest of his life.  The defendants admitted that the applicant stays on the suit land. DW1 testified that the applicant’s house has been on the suit land since 1987. The Defendant’s  contention was that the applicant should move to land parcel No. West Bunyore/Ebusiekwe/614. It was clear that the applicant has also had possession of the portion of the suit land previously occupied by his late father for a period of more than 12 years.  That his possession of the said portion of the suit land is adverse to the title of the Defendants’ father and to that of the Defendants.  The evidence on record is that the applicant has lived continuously and peacefully on the portion of the suit land. Carrying out his activities thereon as of right. 
3. I find that the applicant has acquired title to the portion of the suit land he occupies by the doctrine of adverse possession.
4. The next issue for determination is whether or not the Defendants’ title to the suit land has been extinguished by effluxion of time. Under section 17 of the Limitation of Actions Act, upon the expiration of the period prescribed by the Act for a person to bring an action to recover land the title of that person to the land is extinguished.  This means that the defendants’ father’s title to that portion of the suit land occupied by the applicant’s father and his family had become extinguished by effluxion of time at the expiry of 12 years from 1972 when the applicant’s father entered there on and took possession. The evidence on record is that the plaintiff’s father occupied only a portion of the suit land which the applicant now occupies and the rest of the land is occupied by the Defendants. That both parties have their homes and reside on their respective portions. Pursuant to the provisions of section 28 (h) of the Land Registration Act the suit land was subject to the rights of adverse possession acquired by the applicant’s father and subsequently the applicant.
5. The Defendant caused the suit land to be sub-divided into three portions and registered in their respective names. The Defendants in doing the subdivision and transfers failed to take into account the applicant’s interest to which the suit land was subject.
6. On whether or not the applicant is entitled to the relief sought; the relief sought is a declaration that the applicant is entitled to the suit land by adverse possession, a declaration that the Defendants’ title to the suit land had become extinguished by effluxion of time, cancellation of the resultant parcels after sub-division and costs of the suit.  On the basis of the evidence adduced, I find that the applicant is entitled to the portion of the suit land which he occupies, by adverse possession.  Secondly that the titles held by the Defendants in respect of the resultant parcel after subdivision of the suit land having been obtained without taking into account the applicant’s interest in the suit land ought to be cancelled. 
7. On costs, the law as contained in Section 27 of the Civil Procedure Act is that costs follow the event.
8. In conclusion, on the basis of the findings herein, I find that the plaintiff has proved his case on a balance of probabilities and enter judgement in his favour for:
9. A declaration that the applicant, JOSPHAT OPATI, has acquired title to the half portion he occupies on the ground of land parcel known as WEST BUNYORE/ EBUSIEKWE/598.
10. A declaration that the title of the registered owner to the said half of land parcel No. WEST BUNYORE/EBUSIEKWE/598 occupied by the applicant was extinguished by effluxion of time.
11. An order for cancellation of the subdivision of the original land parcel known as WEST BUNYORE/EBUSIEKWE/598.
12. An order for cancellation of title to land parcel No.s WEST BUNYORE/EBUSIEKWE/2112, 2113 and 2114 in the names of the Defendants.
13. An order for restoration of land parcel No. WEST BUNYORE/EBUSIEKWE/598 and subdivision thereof so as to transfer half portion thereof as occupied by the applicant on the ground, to the applicant.
14. Costs to the applicant.

Orders accordingly.

Judgement dated and signed at Vihiga and delivered virtually this 9^th day of May, 2024 through Microsoft Teams video conferencing platform.

E. ASATI,

JUDGE.

In the presence of:

Ajevi:  Court Assistant.

Malanda for the Plaintiff/Applicant.

Willie for the Defendants/Respondents.