Introduction
The Applicant commenced this suit vide an Amended Originating Summons dated 1st August, 2023 against the Respondent seeking the following orders:
1. THAT the Applicant is entitled to be registered as the proprietor of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under section 38 of Limitation of Actions Act Cap 22 Laws of Kenya on the ground that since the year 1999 the Applicant has been openly peacefully and as of right in possession and occupation of the above-mentioned parcel of land that is to say for a period of over 12 years immediately preceding presentation of this originating summons in court.
2. THAT the Respondent’s title to the said parcel of land has been extinguished under Section 17 of the Limitation of Actions Act, Cap 22 Laws of Kenya.
3. THAT the Appellant be registered as the owner of that parcel of land known as BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya.
3ATHAT in the alternative a declaration be made that upon payment of the full purchase price of land parcel BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares by the Applicant, a constructive trust was created in favour of the Applicant.
3B THAT a declaration be made that consequent upon such constructive trust, the Applicant is entitled to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares.
4. THAT an order do issue directing the Respondent to promptly execute transfer documents and any relevant forms in favour of the Applicant herein with respect to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 and in default, the court’s deputy registrar do execute the said transfer forms and any relevant forms as will ensure the Applicant is registered as the absolute proprietor of the suit land.
5. THAT costs of the suit be borne by the Respondent.
The summons was based on the grounds set out and the Applicant’s supporting affidavit sworn on 1st August, 2023. He stated that he has been in occupation of the parcel of land BAHATI/ENGORUSHA BLOCK 1/915 since October, 1999. He stated that he bought the land from the Respondent on 23rd October, 1999 but the Respondent failed and/or refused to transfer the land to him. He further stated that he has been in quiet, peaceful and uninterrupted possession of the suit land. It was stated that the Respondent never raised any objection to his occupation of the suit land. He stated that as advised by his advocates, the Respondent’s title was extinguished under Section 17 of the Limitation of Actions Act upon payment of the full purchase price of the suit land. He also stated that as advised by his advocates, a constructive trust was created in his favour with respect to the suit land. He urged the court to allow the application as prayed.
The Respondent did not file any response to the summons.
Submissions
The Applicant filed his submissions dated 18th October, 2024 where they gave a background of the case and identified one issue for determination, whether the Applicant has been in adverse possession of the suit parcel of land and thereby extinguished the Respondent’s title to the land. Counsel for the Applicant relied on the case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR and Sections 7, 13 and 38 of the Limitation of Actions Act.
They submitted that the Applicant acquired the suit property via purchase from the Respondent on 23rd October, 1999 and upon payment of the full purchase price, the Applicant took possession immediately. They further submitted that the occupation and use has been actual, open, exclusive and uninterrupted in continuity.
They relied on the case of Kisumu App. No 82 of 2014 Wilfred Kegonye Babu V Henry Mose Onuko [2019] eKLR which cited with approval the case of Wambugu V Njuguna [1983] KLR 172 and submitted that full consideration was paid by the Applicant on 23rd October, 1999. He further submitted that duration for a claim of adverse possession began running from the said date thus beyond the prescribed twelve years.
Counsel also relied on Section 17 of Limitation of Actions Act and the case of Peter Mbiri Michuki V Samuel Mugo Michuki [2014] eKLR as restated in Rose Akello Otieno V Joseph Odote & Another [2022] eKLR and submitted that the Respondent’s title to the suit property has since been extinguished.
In conclusion, they urged the court to allow the application as prayed.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether occupation and possession by the Plaintiff over the suit property constituted adverse possession.
b) Who should bear the costs of the suit.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land…”
In Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.
In the case of Public Trustee V Wanduru Ndegwa [1984] KECA 72 (KLR) Kneller JA held as follows:
“The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The vendor retains a lien on the property for the balance of the purchase money which disappears when it is paid and the purchaser then becomes the sole beneficial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession.
The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K). The upshot is that although Kamau is the proprietor of this registered land Mrs Muthoni is in possession and actual occupation of it and has been in possession of it for over twelve years so she has rights acquired under the Limitation of Actions Act…”
Further, in the case of East Africa Pentecostal Church through the Registered Trustees v Hezekiel [2024] KEELC 4589 (KLR) the court held as follows:
“…For adverse possession arising out of an aborted sale agreement or license, the time for adverse possession starts to run after the payment of the entire purchase price or when the license terminates…”
In the present case, it is not in dispute that the Applicant purchased the suit property from the Respondent at a consideration of Kshs. 200,000/=. This is evidenced by the sale agreement dated 23rd October, 1999. It is also not in dispute that there was payment of the full purchase price as evidenced by the cheque dated 23rd October, 1999. It was the Applicant’s case that he has been in quiet, peaceful and continuous occupation of the suit property after purchasing the same from the Respondent. It is also not in contention that the Applicant’s claim remains controverted by the Respondent.
In view of the above, it is this court’s opinion that the Applicant indeed purchased the suit property from the Respondent and also having paid the full purchase price, the limitation period begun running on 23rd October, 1999. It is also this court’s view that 12 years have since lapsed from the time the Applicant took possession.
In the upshot, I find that the Applicant has satisfied the requirements on adverse possession and therefore the owner of the suit property.
The prayers as sought in the amended originating summons dated 1st August, 2023 are hereby allowed as prayed. THUS:-
1. THAT the Applicant is entitled to be registered as the proprietor of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under section 38 of Limitation of Actions Act Cap 22 Laws of Kenya on the ground that since the year 1999 the Applicant has been openly peacefully and as of right in possession and occupation of the above-mentioned parcel of land that is to say for a period of over 12 years immediately preceding presentation of this originating summons in court.
2. THAT the Respondent’s title to the said parcel of land has been extinguished under Section 17 of the Limitation of Actions Act, Cap 22 Laws of Kenya.
3. THAT the Appellant be registered as the owner of that parcel of land known as BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya.
4. THAT an order do issue directing the Respondent to promptly execute transfer documents and any relevant forms in favour of the Applicant herein with respect to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 and in default, the court’s deputy registrar do execute the said transfer forms and any relevant forms as will ensure the Applicant is registered as the absolute proprietor of the suit land.
5. THAT costs of the suit be borne by the Respondent.
It is so ordered.
The Applicant commenced this suit vide an Amended Originating Summons dated 1st August, 2023 against the Respondent seeking the following orders:
1. THAT the Applicant is entitled to be registered as the proprietor of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under section 38 of Limitation of Actions Act Cap 22 Laws of Kenya on the ground that since the year 1999 the Applicant has been openly peacefully and as of right in possession and occupation of the above-mentioned parcel of land that is to say for a period of over 12 years immediately preceding presentation of this originating summons in court.
2. THAT the Respondent’s title to the said parcel of land has been extinguished under Section 17 of the Limitation of Actions Act, Cap 22 Laws of Kenya.
3. THAT the Appellant be registered as the owner of that parcel of land known as BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya.
3ATHAT in the alternative a declaration be made that upon payment of the full purchase price of land parcel BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares by the Applicant, a constructive trust was created in favour of the Applicant.
3B THAT a declaration be made that consequent upon such constructive trust, the Applicant is entitled to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares.
4. THAT an order do issue directing the Respondent to promptly execute transfer documents and any relevant forms in favour of the Applicant herein with respect to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 and in default, the court’s deputy registrar do execute the said transfer forms and any relevant forms as will ensure the Applicant is registered as the absolute proprietor of the suit land.
5. THAT costs of the suit be borne by the Respondent.
The summons was based on the grounds set out and the Applicant’s supporting affidavit sworn on 1st August, 2023. He stated that he has been in occupation of the parcel of land BAHATI/ENGORUSHA BLOCK 1/915 since October, 1999. He stated that he bought the land from the Respondent on 23rd October, 1999 but the Respondent failed and/or refused to transfer the land to him. He further stated that he has been in quiet, peaceful and uninterrupted possession of the suit land. It was stated that the Respondent never raised any objection to his occupation of the suit land. He stated that as advised by his advocates, the Respondent’s title was extinguished under Section 17 of the Limitation of Actions Act upon payment of the full purchase price of the suit land. He also stated that as advised by his advocates, a constructive trust was created in his favour with respect to the suit land. He urged the court to allow the application as prayed.
The Respondent did not file any response to the summons.
Submissions
The Applicant filed his submissions dated 18th October, 2024 where they gave a background of the case and identified one issue for determination, whether the Applicant has been in adverse possession of the suit parcel of land and thereby extinguished the Respondent’s title to the land. Counsel for the Applicant relied on the case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR and Sections 7, 13 and 38 of the Limitation of Actions Act.
They submitted that the Applicant acquired the suit property via purchase from the Respondent on 23rd October, 1999 and upon payment of the full purchase price, the Applicant took possession immediately. They further submitted that the occupation and use has been actual, open, exclusive and uninterrupted in continuity.
They relied on the case of Kisumu App. No 82 of 2014 Wilfred Kegonye Babu V Henry Mose Onuko [2019] eKLR which cited with approval the case of Wambugu V Njuguna [1983] KLR 172 and submitted that full consideration was paid by the Applicant on 23rd October, 1999. He further submitted that duration for a claim of adverse possession began running from the said date thus beyond the prescribed twelve years.
Counsel also relied on Section 17 of Limitation of Actions Act and the case of Peter Mbiri Michuki V Samuel Mugo Michuki [2014] eKLR as restated in Rose Akello Otieno V Joseph Odote & Another [2022] eKLR and submitted that the Respondent’s title to the suit property has since been extinguished.
In conclusion, they urged the court to allow the application as prayed.
Analysis and Determination
I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:
a) Whether occupation and possession by the Plaintiff over the suit property constituted adverse possession.
b) Who should bear the costs of the suit.
The doctrine of adverse possession is founded under Section 7, 13, 37 and 38 of the Limitation of Actions Act. Further, in order for one to succeed in the claim for adverse possession, a party must prove he had uninterruptedly possessed and occupied the suit land continuously and the Defendant was aware of such. Section 7 of the Act provides as follows:
“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. Section 13 “(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land…”
In Kasuve Vs Mwaani Investments Limited & 4 others 1 KLR 184, the Court of Appeal restated what a Plaintiff in a claim for Adverse Possession has to prove;
“In order to be entitled to land by Adverse Possession, the claimant must prove that he has been in exclusive possession of the land openly and as of right without interruption for a period of 12 years either after dispossessing the owner or by discontinuation of possession by the owner on his own volition”.
In the case of Public Trustee V Wanduru Ndegwa [1984] KECA 72 (KLR) Kneller JA held as follows:
“The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The vendor retains a lien on the property for the balance of the purchase money which disappears when it is paid and the purchaser then becomes the sole beneficial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession.
The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K). The upshot is that although Kamau is the proprietor of this registered land Mrs Muthoni is in possession and actual occupation of it and has been in possession of it for over twelve years so she has rights acquired under the Limitation of Actions Act…”
Further, in the case of East Africa Pentecostal Church through the Registered Trustees v Hezekiel [2024] KEELC 4589 (KLR) the court held as follows:
“…For adverse possession arising out of an aborted sale agreement or license, the time for adverse possession starts to run after the payment of the entire purchase price or when the license terminates…”
In the present case, it is not in dispute that the Applicant purchased the suit property from the Respondent at a consideration of Kshs. 200,000/=. This is evidenced by the sale agreement dated 23rd October, 1999. It is also not in dispute that there was payment of the full purchase price as evidenced by the cheque dated 23rd October, 1999. It was the Applicant’s case that he has been in quiet, peaceful and continuous occupation of the suit property after purchasing the same from the Respondent. It is also not in contention that the Applicant’s claim remains controverted by the Respondent.
In view of the above, it is this court’s opinion that the Applicant indeed purchased the suit property from the Respondent and also having paid the full purchase price, the limitation period begun running on 23rd October, 1999. It is also this court’s view that 12 years have since lapsed from the time the Applicant took possession.
In the upshot, I find that the Applicant has satisfied the requirements on adverse possession and therefore the owner of the suit property.
The prayers as sought in the amended originating summons dated 1st August, 2023 are hereby allowed as prayed. THUS:-
1. THAT the Applicant is entitled to be registered as the proprietor of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under section 38 of Limitation of Actions Act Cap 22 Laws of Kenya on the ground that since the year 1999 the Applicant has been openly peacefully and as of right in possession and occupation of the above-mentioned parcel of land that is to say for a period of over 12 years immediately preceding presentation of this originating summons in court.
2. THAT the Respondent’s title to the said parcel of land has been extinguished under Section 17 of the Limitation of Actions Act, Cap 22 Laws of Kenya.
3. THAT the Appellant be registered as the owner of that parcel of land known as BAHATI/ENGORUSHA BLOCK 1/915 measuring 0.0359 hectares under Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya.
4. THAT an order do issue directing the Respondent to promptly execute transfer documents and any relevant forms in favour of the Applicant herein with respect to the whole of land parcel number BAHATI/ENGORUSHA BLOCK 1/915 and in default, the court’s deputy registrar do execute the said transfer forms and any relevant forms as will ensure the Applicant is registered as the absolute proprietor of the suit land.
5. THAT costs of the suit be borne by the Respondent.
It is so ordered.