ROBERT MUTUA MBUVI VS ONESMUS MUTUA MULUMBI

1. This suit was instituted through the Originating summons dated 11th October 2019 where the Applicants pray for determination and declaration on the following:
1) THAT the estate of the Deceased JOSEPH MBUVI NDANDA alias MBUVI NDUNDA be declared to have acquired title to 1 acre by adverse possession to the suit land previously known as KYANGWITHYA/TUNGUTU/367 and now known as LR. NO. KYANGWITHYA/TUNGUTU/2914.
2) THAT the registration of ONESMUS MUTUA MULUMBI and ALEX MUEMA KIMANZI based on the land previously known as KYANGWITHYA/TUNGUTU/367 and now known as LR. NO. KYANGWITHYA/TUNGUTU/2913 & 2914 be cancelled and the Land Registrar Kitui do rectify the register to enter the name of the Plaintiffs as the registered proprietors of one acre from the suit land.
3) THAT proceedings of ELC CM ELC No.63 of 2018 AT KITUI seeking to declare the Plaintiffs trespassers and subsequently to evict them, be stayed pending the hearing and determination of the summons.
4) THAT the costs of these proceedings be borne by the Defendants.
2. The Originating Summons was supported by two affidavits sworn by the 1st Applicant, with the authority of the other Applicants as co-administrators of the Estate of the late Joseph Mbuvi Ndunda alias Mbuvi Ndunda. They are the sons and daughter of the deceased.
3. It was deposed that their father Joseph Mbuvi Ndunda (Deceased) bought an acre out of land parcel L.R Kyangwithya/Tungutu/367 from the family of the Defendant. This one acre was marked and fenced off and handed over to the deceased in 1985. It was stated that the Applicants have been in actual, open, physical and uninterrupted possession of the one acre of the land for a period over twelve years immediately preceding the filing of this suit thereby acquiring title to the one acre by adverse possession. They stated that any claims by the Defendants based on the original title known as KYANGWITHYA/TUNGUTU/367 and the registration of the Defendant or anyone else of the same parcel of land now known as KYANGWITHYA/TUNGUTU/2913 and 2914 had been extinguished.

The Respondent’s Replying Affidavit
4. The respondent denied the Applicants’ claim and swore an affidavit in response. He deposed that this suit arises from the suit he filed in the Chief Magistrate’s Court ELC No.63 of 2018 at Kitui seeking their eviction from the suit land.
5. He averred that the suit property number Kyangwithya/Tungutu/2914 is family land he inherited from his late father and its title deed is registered in his name.
6. When he was working in Mombasa from 1969 to 1987 he left his land to fallow while the other family members used their portions. During this time his land was used by his elder brother Kivivu Mulumbi.
7. Upon the death of the Respondent’s brother Kivivu Mulumbi in 2018, the Plaintiff forcibly entered his land and ploughed the same, prompting him to file Kitui CM ELC No.63 of 2018, injuncting the plaintiff from using his land.
8. At the time of the alleged sale, the title was still in the Respondent’s late father’s name since he passed away in 1984 and thus his elder brother could not deal with the land as that would amount to intermeddling with the deceased property. The said property was transmitted to him through succession proceedings.
9. The Respondent avers that he is the one in occupation of the land and not the Applicants herein and hence, they have not acquired any title adverse to him.
10. The Court gave directions that the matter to proceed as a normal suit through viva voce evidence. The parties filed witness statements and lists of documents in support of their cases.

The Hearing of the suit
11. The hearing of the suit commenced on 22nd March 2023. PW1 Robert Mutua Mbuvi testified and adopted the supporting affidavit and the documents filed as evidence in chief. He stated that his father bought approximately one acre of the suit land.
12. He stated that the person on the land is the defendant and that the applicants worked on the land from 1985 until 2018 when the defendant brought a complaint and chased them away.  He stated that they were given status quo orders which were disregarded.
13. On cross-examination, he acknowledged that he was not a party to the sale agreement in 1985. The entire land had been adjudicated and given Land Parcel 367 and registered in the name of Mulumbi Nzusi. However, he stated that his father did not buy the suit land from Mulumbi Nzusi but bought it from Kivivu Mulumbi.
14. He further stated that he currently lives in Matinyani in a different sub-county from the suit land. That his father was not given a suit parcel number and that they did not object to the succession cause regarding the land.
15. PW 1 also acknowledged that the defendant is one among many of his father’s children. During the Applicant’s occupation of the suit property, he stated they made terraces and planted napier grass but did not have photos of those activities.
16. When he was referred to the sale agreement dated 28th April 1985, he admitted that the same did not confirm the size of the land sold.
17.  For the defence DW 1, Onesmus Mutua Mulumbi the Defendant testified and adopted his replying affidavit, witness statement and bundle of documents.  He reiterated that the property in dispute was formerly owned by his father, who shared the same among his family members, and that the title of the property in dispute is in his name.
18. During the years 1969-1987, he was working in Mombasa and his land was occasionally used by his older brother, Kivivu Mulumbi for grazing with his approval.
19. As the Land Adjudication process was going on, his brother Kivivu Mulumbi sold his share to third parties, who then lodged objections to the land adjudication process and portions were transferred to them with the consent of his father. His share was registered in the name of his father, which was later transmitted to him after the death of his father.
20. When his brother Kivivu Mulumbi died in 2018, the plaintiff forcefully entered his land and alleged that he had bought one acre through his late brother. He caused sub-division of the suit parcel and the one acre claimed by the plaintiffs is now comprised in land title number Kyangwithya/Mulutu/2914 which is in his name.
21. The Respondent sued the Plaintiff vide CM’s ELC No.63 of 2018 and an order of injunction was issued against him, and the suit is still pending determination.
22. On cross-examination, the Respondent stated that when his family filed the succession case, the 1st Plaintiff was using about one acre of the suit land but at the same time he was using the same acre. That the 1st Applicant entered his land without permission.
23. He further stated that his father gave him approximately two and a half acres of land and that his brothers and mother got their portions as well.
24. The parties closed their cases and were to file written submissions.

Applicant's written submissions
25. Counsel for Applicant relied on sections 7, 37 and 38 of the Limitation of Action Act CAP 22 on the statutory basis for adverse possession. They also cited the authority of Titus Kasuve v. Mwaani Investment Ltd where the Court of Appeal elaborated on the requirements for an order of adverse possession.
26. They noted that the Defendant himself told the Court that the Applicants have been on the land since 1985 until the land was registered in his name when he filed eviction orders in a case which is yet to be heard and determined.
27. Counsel submitted that from 1985 until 2018, they have been on the suit land openly and uninterruptedly for 33 years, after having bought the land from the family of the defendant. That the defendant admitted that as he was living in Mombasa, he was aware that the Applicants are on the land and his aim at obtaining eviction orders was to unjustly enrich himself.
28. They relied on the case of Peter Mbiri Michuki v.Samuel Mugo Michuki Civil Appeal No. 22 of 2013 at the Court of Appeal at Nyeri, where it washeld that when the appellant entered into a sale agreement and received the purchase price for the land, he became a trustee.
29. They also relied on the case of Githu vs. Ndeete, submitting that the Defendant should have included the Applicants as part of the Estate of the deceased during succession proceedings.
30. Counsel concluded that having occupied the one acre of the suit land for 33 years, the same ought to be transferred to their names and prayed to find favour with the Court.

The Defendant’s Written Submissions.
31. Counsel for the Defendant summarized the nature and origin of the instant suit as well as their response thereof. It was submitted that it is not in contention that the Plaintiffs ceased to be in possession of the suit land in 2018 when it was interrupted by the Respondent evicting them.
32. The case of Ongwen & another v. Keya & another (2023)KEELC 279(KLR) was relied upon, where it was held that in adverse possession, one must take action while they have possession of the suit property.
33. Counsel also relied on the requirements of adverse possession orders as was given in the authority in the case of Mbira v. Gichuhi(2002)1EALR 137 as cited with approval in Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the administrator of the estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) (Environment & Land Miscellaneous Case 7 of 2021) [2022] KEELC 1217 (KLR).
34. Relying on the above authorities, it was submitted that even if the Plaintiffs were in possession of the suit property for 12 years before being dispossessed, their claims stands defeated because it was by way of a sale agreement which is permissive.
35. Further, it was submitted that in 1985 when the Plaintiffs claim that their father bought the suit land, the Respondent’s father who was the registered owner was already deceased, since he died on 8th December 1974. Therefore, the Plaintiffs must have transacted with the Defendant’s brother only, which was intermeddling and not allowed under Sections 45 and 82(b)(ii) of the Law of Succession Act. It was also noted that during this alleged sale of his share, the Defendant was not present as a witness thereof.
36. It was also submitted that even if all other elements were valid save for the balance remaining unpaid, the possession is only deemed to be adverse after the payment of the last instalment of the purchase price at least 12 years after as it was held by the Court of Appeal sitting at Kisumu in Wilfred Kegonye Babu vs Henry Mose Onuko(2019)eKLR. They also relied on the cases of Peter Mbiri Michuki v. Samuel Mugo Michuki(2014)eKLR which cited and relied on the holding in Public Trustees vs. Wanduru(1984)KLR 314 and Rose Akello Otieno v. Joseph Odote & another(2022)eKLR on this point.
37. The Respondent notes that the Plaintiffs did not adduce any direct evidence to prove possession of the suit property and solely relied on the alleged sale agreement. They also noted that the suit was filed more than a year after the Defendant filed MCELC No.63 of 2018, seeking to evict the Plaintiffs herein.

Analysis and Determination
38. The Court has considered the Originating Summons herein, the replying affidavits, and the evidence adduced during the trial and submissions filed. The court considers the issue arising for the determination.
1. Whether the estate of the Deceased JOSEPH Estate of the late JOSEPH MBUVI NDANDA alias MBUVI NDUNDA has acquired title to 1 acre by adverse possession to the suit land previously known as KYANGWITHYA/TUNGUTU/367 and now known as LR. NO. KYANGWITHYA/TUNGUTU/2914.
2. Who will bear the costs of this suit?
39. Section 7 of the Limitation of Actions Act CAP 22 Laws of Kenya provides that;
“An action may not be brought by any person to recover the 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.”
40. Section 38(1) of the Limitation of Actions Act CAP 22 provides that:
“Registration of title to land or easement acquired under Act 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.”
41. The Plaintiffs aver that they have been in open, notorious and exclusive occupation of the one-acre portion of the suit land from the year 1985 to the year 2018 when the Defendant sought orders in Kitui MCELC No.63 of 2018 to evict them.
42. It is trite law that time ceases to run when the owner of land subject to a claim of adverse possession asserts their rights over the property as was held in the case of Githu vs Ndeete [1994] KLR quoted by the Court of Appeal in Kenya Commercial Bank (Suing as administrator of the Estate of Paul Njoroge Muchene) v Serah Njeri Muchene (sued on behalf and as the administratrix of the Estate of  Perminus Muchene Mwangi)
"Time ceases to run under the Limitation of Actions Act either when the owner takes or asserts his rights or when his right is admitted by adverse possession. Assertion occurs when the owner takes legal proceedings or makes an entry into the land."
43.  Both parties to the suit agree that in 2018 the Defendant sought orders of eviction against the Plaintiffs and made entry onto the land. However, it is also noted that the Plaintiffs claim that by 2018 the 12 years provided for under the Limitation of Actions Act had lapsed since their claim possession started in 1985 and their claim had already crystallized when the Defendant filed the suit for their eviction.
44. In support of their claim, the Plaintiffs exhibited several agreements for the sale of land dated 28th April 1985 said to be between Kivivu Mulumbi and Mbubi Ndunda, 5th June 1985, 22nd October 1991 and 17th December 1991 stating that Kivivu Mbuvi has been paid various sums of money for the purchase of Plot No.367 Kyangwithya/Tungutu. The last agreement dated 17/12/91 indicated that there was a balance of Ksh.2,800/=.
45. The Respondent contends that the Plaintiff's occupation cannot be deemed as adverse possession because it was permitted through an agreement for sale. They also contend that time only starts being adverse when the final instalment of the purchase price is made.
46. In the case of Mbira v. Gachuhi (2002) 1 EALR 137  relied upon by the Defendant as cited with approval in Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the administrator of the estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) [2022] eKLR adverse possession was defined thus:
“… 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…”
47. The Applicants claim that when they purchased the one acre of land from the family of Mulumbi Nzusi, the land was marked, fenced and possession given to their father. This, in the court’s view, confirms that the possession claimed by the Applicants was permissive and consensual and not non–permissive and non-consensual as per the requirements set out in Mbira v. Gachuhi case.
48. The Court further notes that according to the documents supplied by Plaintiff, the last document dated 17/12/91 indicated that there was a balance of the sale price of Ksh.2,800/=. The Plaintiff’s Counsel submits that since there was no demand for payment of the balance of the purchase price it must be presumed that the same was paid.
49. However, the case of Stephen Mwangi Gatunge v Edwin Onesmus Wanjau (Suing in her capacity as the administrator of the estates of Kimingi Wariera (Deceased) and of Mwangi Kimingi (Deceased) [Supra]: held that a claim of adverse possession based on a sale agreement can be upheld only after payment of the last instalment. The Court stated thus;
"The Applicant's occupation having been permissive, it will follow that a claim for adverse may not issue. However, Courts have found that such claim can be sustained after payment of the last instalment. The Court in Nairobi Appeal No. 73 of 1982 Public Trustee v Wanduru Ndegwa [1984] eKLR found that Limitation of Action began running from the date of final payment. In the case Hosea v Njiru & Others [1974] EA 526, Simpson J, following Bridges v Mees [1957] 2 All ER 577, held that once payment of the last instalment of the purchase price had been effected, the purchaser’s possession became adverse to the vendor and that he thenceforth, by occupation for twelve years, was entitled to become registered as proprietor of it. From the copy of translation, of the sale agreement, the Applicant made a final payment on the 5th September, 2006.”
50. The Court of Appeal in the case of  Sisto Wambugu v Kamau Njuguna [1983] eKLR found in the same way as the case of Stephen Mwangi Gatunge The learned judges found as follows:
“Hughes v Griffin has been cited in Megarry’s Law of Real Property on this topic (4th Edn) at p 1013 and, applying its reasoning, it is in my judgment evident that a person (here the appellant) must have an effective right to make entry and to recover possession of the land in order that the statute may begin to run. He cannot have that effective right if the person in occupation is there under a contract, or other valid permission or licence, which has not been determined.
There have been several cases, of which the Livingstone Ndeete case is one, in which the claimant of land puts his case in the alternative, that is to say by pleading the agreement under which he is entered, and then asking for an order based on subsequent adverse possession. For instance in Hosea v Njiru & Others [1974] EA 526, Simpson J, following Bridges v Mees [1957] 2 All ER 577, held that once payment of the last instalment of the purchase price had been effected, the purchaser’s possession became adverse to the vendor and that he thenceforth, by occupation for twelve years, was entitled to become registered as proprietor of it.”
51. In the present case, it was upon the Plaintiffs to prove that their deceased father had paid the last instalment and the entire purchase price to make out a case of adverse possession. There is no evidence to show that the final instalment of the purchase price was paid. Legal authorities show that the date of the last instalment is when the time for purposes of adverse possession begins to run for a full span of twelve years because if the purchaser takes possession, it is on the day of paying the last instalment that the owner of the land becomes dispossessed of his land. (See Peter Michuli Vs Samuel Mugo Michuki (2014) Eklr.)
52. There is also the glaring fact that the Defendant's brother did not have the capacity to sell the suit land to the Applicant's deceased father. At the time of making the Agreement from the years 1985-1991, the title was in the name of Mulumbi Nzusi, the Defendant's now-deceased father according to the Green Card produced by the Defence for Land Parcel Kyangwithya/Tungutu/367. The Defendant’s brother, Kivivu Mulumbi lacked the legal interest to pass the suit land onto the Applicant's father. Further, the Defendant’s father died in 1974 as per the death certificate exhibited. He could not have sold the land to the Plaintiff’s father in 1985.
53. As far as Section 45(1) of the Law of Succession Act CAP 160 goes, the acts of the Plaintiffs purchasing and/or taking possession of the land owned by the deceased was an illegality as it amounted to intermeddling with the property of a deceased person. The said Section provides that:
“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”
54. Further, Section 82 (b) (ii) of the Law of Succession Act provides that:-
‘No immovable property shall be sold before confirmation of              Grant’
55. The court has also considered the question of whether or not adverse possession had been proved. The burden of proof lies on the Applicant to prove that they have a valid claim of adverse possession to the suit land. The Court of Appeal in Francis Gicharu Kariri – v- Peter Njoroge Mairu, Civil Appeal No. 293 of 2002 (Nairobi) approved the decision of the High Court in the case of Kimani Ruchire –v – Swift Rutherfords & Co. Ltd., (1980) KLR 10 at page 16 letter B, where Kneller J. held that:
“The plaintiffs have to prove that they have used this land which they claim as of right: nec vi, nec clam, nec precario (no force, no secrecy, no persuasion). So the plaintiff must show that the company had knowledge (or the means of knowing actual or constructive) of the possession or occupation. The possession must be continuous. It must not be broken for any temporary purposes or any endeavours to interrupt it by way of recurrent consideration.”
56. In  Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018] eKLR the court found that:
“Likewise, it is settled that a person seeking to acquire title to land by     adverse possession must prove non-permissive or non-consensual, actual open, notorious, exclusive and adverse use/occupation of the land in question for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario. See Jandu vs. Kirplal & Another (1975) EA 225. In other words, a party relying on the doctrine bears the burden of demonstrating that the title holder has lost his/her right to the land either by being dispossessed of it or having discontinued his possession of it for the aforementioned statutory period.  See this Court’s decision in Wambugu vs. Njuguna [1983] KLR 173.”
57. The Plaintiffs claim that they have been in actual, open, physical and uninterrupted possession of the one acre of the land for a period in excess of twelve years immediately preceding the filing of this suit. However, they have not stated in their affidavits or their evidence in chief what they had or did on the land that constituted adverse possession.
58. Counsel for the Applicants submitted that the Defendant admitted in his evidence that when he lived in Mombasa he knew the Plaintiffs were using the land. Indeed the Defendant did state that the Plaintiff was using the one acre of land at the time when he filed the Succession Cause. He did not state what activities the Plaintiffs were carrying out on the land. The Court notes that the Defendant also stated that he was also using the same portion of one acre of land and had constructed a house on it. He also stated upon cross-examination that his parents had also constructed on the land. In the court’s view, the Plaintiff did not prove exclusive possession of the suit land.
59. The court in the case of Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] eKLR held that;
"In deciding the issue of Adverse Possession, the primary function of a Court is to draw legal inferences from proven facts. Such inferences are clearly matters of law. Thus, whereas possession is a matter of fact, the question whether that possession is adverse or not is a matter of legal conclusion to be drawn from the findings of facts.”
60. In the Court's view, the Plaintiffs have failed to prove non-permissive or non-consensual, actual, open, notorious, exclusive and adverse use/occupation of one acre out of land parcel the land previously known as KYANGWITHYA/TUNGUTU/367 and now known as LR. NO. KYANGWITHYA/TUNGUTU/2914 for an uninterrupted period of 12 years as espoused in the Latin maxim, nec vi nec clam nec precario.
61.  The final order of the court is that;
1) The Plaintiff/Applicants suit is hereby dismissed.
2) Costs of the suit are awarded to the Respondent.