Mary Wambui Muturi, (hereinafter referred to as the plaintiff) came to this court against Teresia Wangari seeking a declaration that the Plaintiff is entitled to be registered forthwith as owner of Bahati/Kabatini Block 1/6654 which the Plaintiff has been in adverse possession for more than twelve (12) years immediately preceding the presentation of this suit and on which she has lived openly and continuously as of right and in adverse possession and without any interruption from Teresia Wangari (hereinafter referred to as the Defendant) or her predecessors or agents or servants in the above title and that the Defendant\'s title Bahati/Kabatini Block 1/6654 has been extinguished in favour of the Plaintiff under section 37 and 38 o do transfer Bahati/Kabatini Block1/16654 to the defendant and in default the Deputy Registrar be authorized to do and or transfer of Bahati/Kabatini Block 1/6654.An order for costs of this Originating Summons.
The grounds of the originating summons are that the property referred to herein was developed by efforts contribution and resources of the plaintiff. In the supporting affidavit the plaintiff states that he has been in occupation of the land since 1971 to-date. The plaintiff has been enjoying quiet possession of the suit land with the full knowledge of the respondent. He has been in possession with his family. He has annexed a copy of the green card as evidence that the land is in names of the Defendant.
The respondent states that she is the owner of the land parcel number Bahati/Kabatini Block1/6654, measuring 0.0407 Hectares which is vacant. The respondent bought the said land on the 10th of October 1998 from Peter Muturi Njuguna in the presence of the applicant who is the wife of Peter Muturi Njuguna. She occasionally allows the applicant to plant vegetables on the land. The two are neighbors and not strangers as they usually meet to exchange pleasantries. That the applicant intends to acquire the plot through this court.
The parties herein have filed respective submissions which I have read carefully and discerned that the principle of advance possession is enshrined in sections 7, 12, 37 and 38 of the Limitation of Actions Act. Section 7 provides: -
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.
Section 37 provides: -
This Act applies to land registered under the Government Lands Act (Repealed), the Registration of Titles Act (Repealed), the Land Titles Act (Repealed) or the Registered Land Act (Repealed), in the same manner and to the same extent as it applies to land not so registered, except that—
(a) where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but is held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without
prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act;
Section 38 provides on registration of title to land or easement acquired under 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.
The Black’s Law Dictionary, Ninth Edition defines “adverse possession” thus:
1. The enjoyment of real property with a claim of right when the enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.
2. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specific period of time
The Court of Appeal in Nyeri Civ. Appeal no 153 of 2017, Chairman Board of Governors Murang’a College of Technology Primary School VS Julius Ngigi Munjuga [2018] eKLR quoted with approval the case of Alfred Welimo VS Mulaa Sumba Barasa, CA No. 186 of 2011 and held:
“It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s manual of the Law of Property, 5th ed. Page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land. In such circumstances, the appellant would be said to have been dispossessed of the suit property by the respondent.”
Similarly, the Court of Appeal in Nairobi CoA No. 218 of 2017 Christopher Kioi & another v Winnie Mukolwe & 4 others [2018] eKLR when dismissing an Appeal on a judgment that dismissed an Originating Summons held;
“The appellants have laid great emphasis on the fact that Kituri did not use the suit property in his lifetime, but that in itself is not conclusive evidence of dispossession because where the owner has little use of his land, others may use it without that possession amounting to dispossession or being inconsistent with the owner’s title”.
This court finds that the plaintiff has demonstrated that she is in exclusive possession and control of the property and that her statement has not been controverted by the defendant. The averment that she is in possession and has been utilizing the property has not been denied. It is also in evidence that the property is registered in the defendant’s name. The defendant contends that she gave the plaintiff permission to utilize the property but there is no evidence to that effect.
This court finds that the plaintiff has proved his case on a balance of probabilities and therefore allows the claim thus I do issue a declaration that the Plaintiff is entitled to be registered forthwith as owner of Bahati/Kabatini Block 1/6654 which the Plaintiff has been in adverse possession for more than twelve (12) years immediately preceding the presentation of this suit and on which she has lived openly and continuously as of right and in adverse possession and without any interruption from Teresia Wangari (hereinafter referred to as the Defendant) or her predecessors or agents or servants in the above title, and that the Defendant\'s title Bahati/Kabatini Block 1/6654 has been extinguished in favour of the Plaintiff under section 37 and 38 of the limitation of action Act Cap 21 Laws of Kenya and that the defendant do transfer Bahati/Kabatini Block1/16654 to the defendant and in default the Deputy Registrar be authorized do transfer of Bahati/Kabatini Block 1/6654 to the plaintiff. Costs to the plaintiff.
Judgment dated signed and delivered electronically at Nakuru this 16TH day of October 2024.
The grounds of the originating summons are that the property referred to herein was developed by efforts contribution and resources of the plaintiff. In the supporting affidavit the plaintiff states that he has been in occupation of the land since 1971 to-date. The plaintiff has been enjoying quiet possession of the suit land with the full knowledge of the respondent. He has been in possession with his family. He has annexed a copy of the green card as evidence that the land is in names of the Defendant.
The respondent states that she is the owner of the land parcel number Bahati/Kabatini Block1/6654, measuring 0.0407 Hectares which is vacant. The respondent bought the said land on the 10th of October 1998 from Peter Muturi Njuguna in the presence of the applicant who is the wife of Peter Muturi Njuguna. She occasionally allows the applicant to plant vegetables on the land. The two are neighbors and not strangers as they usually meet to exchange pleasantries. That the applicant intends to acquire the plot through this court.
The parties herein have filed respective submissions which I have read carefully and discerned that the principle of advance possession is enshrined in sections 7, 12, 37 and 38 of the Limitation of Actions Act. Section 7 provides: -
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.
Section 37 provides: -
This Act applies to land registered under the Government Lands Act (Repealed), the Registration of Titles Act (Repealed), the Land Titles Act (Repealed) or the Registered Land Act (Repealed), in the same manner and to the same extent as it applies to land not so registered, except that—
(a) where, if the land were not so registered, the title of the person registered as proprietor would be extinguished, such title is not extinguished but is held by the person registered as proprietor for the time being in trust for the person who, by virtue of this Act, has acquired title against any person registered as proprietor, but without
prejudice to the estate or interest of any other person interested in the land whose estate or interest is not extinguished by this Act;
Section 38 provides on registration of title to land or easement acquired under 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.
The Black’s Law Dictionary, Ninth Edition defines “adverse possession” thus:
1. The enjoyment of real property with a claim of right when the enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.
2. The doctrine by which title to real property is acquired as a result of such use or enjoyment over a specific period of time
The Court of Appeal in Nyeri Civ. Appeal no 153 of 2017, Chairman Board of Governors Murang’a College of Technology Primary School VS Julius Ngigi Munjuga [2018] eKLR quoted with approval the case of Alfred Welimo VS Mulaa Sumba Barasa, CA No. 186 of 2011 and held:
“It is trite that adverse possession is not established merely because the owner has abandoned possession of his land and ceased to use it; for as Robert Megarry aptly observed in his Megarry’s manual of the Law of Property, 5th ed. Page 490, the owner may have little present use for the land and that land may be used by others, without the users demonstrating a possession inconsistent with the title of the owner. So the mere fact that the appellant abandoned possession of the suit property and went to live at Ndalu scheme by and of itself does not establish adverse possession. The abandonment of possession must be coupled with the respondent taking possession of the land with animus possidendi (the intention to possess) and asserting thereon rights that are inconsistent with those of the appellant as the owner of the land. In such circumstances, the appellant would be said to have been dispossessed of the suit property by the respondent.”
Similarly, the Court of Appeal in Nairobi CoA No. 218 of 2017 Christopher Kioi & another v Winnie Mukolwe & 4 others [2018] eKLR when dismissing an Appeal on a judgment that dismissed an Originating Summons held;
“The appellants have laid great emphasis on the fact that Kituri did not use the suit property in his lifetime, but that in itself is not conclusive evidence of dispossession because where the owner has little use of his land, others may use it without that possession amounting to dispossession or being inconsistent with the owner’s title”.
This court finds that the plaintiff has demonstrated that she is in exclusive possession and control of the property and that her statement has not been controverted by the defendant. The averment that she is in possession and has been utilizing the property has not been denied. It is also in evidence that the property is registered in the defendant’s name. The defendant contends that she gave the plaintiff permission to utilize the property but there is no evidence to that effect.
This court finds that the plaintiff has proved his case on a balance of probabilities and therefore allows the claim thus I do issue a declaration that the Plaintiff is entitled to be registered forthwith as owner of Bahati/Kabatini Block 1/6654 which the Plaintiff has been in adverse possession for more than twelve (12) years immediately preceding the presentation of this suit and on which she has lived openly and continuously as of right and in adverse possession and without any interruption from Teresia Wangari (hereinafter referred to as the Defendant) or her predecessors or agents or servants in the above title, and that the Defendant\'s title Bahati/Kabatini Block 1/6654 has been extinguished in favour of the Plaintiff under section 37 and 38 of the limitation of action Act Cap 21 Laws of Kenya and that the defendant do transfer Bahati/Kabatini Block1/16654 to the defendant and in default the Deputy Registrar be authorized do transfer of Bahati/Kabatini Block 1/6654 to the plaintiff. Costs to the plaintiff.
Judgment dated signed and delivered electronically at Nakuru this 16TH day of October 2024.