1 The Applicants filed an originating summons under the provisions of order 37 Rule 7 and 8 of the Civil Procedure Rules, Section 38 of the Limitation of Actions Act Cap 22 and Section 7[d] of the Land Act No 6 of 2012 Laws of Kenya seeking the following orders; -
- A declaration that title deed in the names of STANLEY MATHEW DANIEL MWABOZA on all that parcel of land registered as KIKOKENI/BUMBANI A/658 measuring 14.6Ha has been extinguished by the Applicant’s adverse possession thereof for a period of more than 12 years.
- That the applicants herein be declared to be entitled by way of adverse possession of all that parcel of land registered as KIKOKENI/BUMBANI A/658 measuring 14.6Ha situated in Bumbani within Kwale County.
- An order does issue directing the land registrar Kwale lands registry to register the applicants as the absolute proprietors of all that parcel of land registered as KIKOKENI/BUMBANI A/685 measuring 14.6Ha
- That costs of this application be in the cause.
2 The Originating Summons is anchored on grounds set out on the face of it, and cited in the joint Supporting affidavit sworn by both Applicants and which summarily state that the Respondent is the legally registered owner of all that parcel of land known as KIKOKENI/BUMBANI A/658 hereinafter referred to as the suit property. That however the Respondents have been living on the said property and doing farming thereon for over 50 years. The occupation has been without interference from the Respondent.
3 The Applicants state that the suit property was allocated their late mother Mwanasha Omari Kibwago but at the time of her demise she was not yet issued with a title deed. That they only learnt of the change in ownership to another person after her demise. It is averred that the Respondent has never taken occupation of the suit property or laid any claim on the same. The court is asked to grant the orders in the originating summons.
4 On 2/2/2024 an application was made to serve the Respondent by substituted service. On 14/2/2024, the court directed the Applicants to serve summons upon the Respondent through advertisement in one local daily of nationwide circulation in a conspicuous page. Counsel for the Applicants subsequently confirmed to the court that they had complied with the court’s directions as evidenced by the affidavit of service dated 2/5/2024. The Respondent did not, however, enter appearance. Consequently, this suit proceeded to hearing as an undefended cause on 22/5/2024.
HEARING
5 PW1 Salim Bakari Jireti testified that the suit property herein belonged to his late mother. That he has been living on the same together with his siblings and wife even before the adjudication. The witness referred to a green card for the suit property and which he produced as PEXH1, the same indicates the Respondent as the owner of the suit property. He stated that efforts to trace the Respondent has proved futile. That the Applicants occupation dates back to 1970. That he had the authority to act on behalf of the rest of the occupants of the suit property as evidenced in the supporting affidavit at paragraph 1. The witness produced the photographs to the suit property as PEXH2. He prayed that the court grants him title to the property. The Applicants case was marked as closed.
6 The Court made an inquiry on how old the witness was at the time of adjudication. He stated that he was already an adult with one child. On the 1st entry in the green card the witness stated that Abdalla Alfan Gamoyo was a relative and who had sold the land. The witness stated that Abdalla Alfan was similar to a colonialist through his character of selling family land.
SUBMISSIONS
7 The Applicants submissions are dated 24/7/2024 and the same were filed electronically before court. The court has considered the contents thereof.
DISCUSSIONS AND DETERMINATION
8 It is noted that the Respondent did not participate in the suit despite service being effected on him. However, the Applicants do not escape the burden and standard of proof which they have to satisfy and discharge in accordance with the law in order for their claim to succeed. This Court has a duty to interrogate and evaluate uncontroverted evidence in order to determine whether the applicant is entitled to the prayers sought.
9 Section 107(1) of the Evidence Act Chapter 80 of the Laws of Kenya provides that
“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
Section 108 provides;
“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”
And section 109 provides;
“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 for by law that the proof of that fact shall lie on any particular person.”
10 In the case of Charter House Bank Limited (Under Statutory management v Frank N. Kamau [2016] eKLR, the Court of Appeal when discussing the burden of proof upon the Plaintiff in a situation where the Defendant failed to adduce evidence stated thus:
“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.... The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified"
11 The doctrine of adverse possession in Kenya is embodied in Section 7 of the Limitation of Actions Act, (Cap 22) in these terms:
“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 is first accrued to some person through whom he claims, to that person”.
Section 13 of the Act is in these terms:
“(1) A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession”1
12 Section 17 of the said Act stipulates that upon the expiry of the period (12 years) prescribed by the Act for a person to bring an action to recover land, the title of that person to the land stands extinguished..
13 The Court of Appeal in the case of Benjamin Kamau Murma & Others vs Gladys Njeri, C A No. 213 of 1996 held as follows:
“The combined effect of the relevant provisions of sections 7, 13 and 17 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya is to extinguish the title of the proprietor of land in favour of an adverse possessor of the same at the expiry of 12 years of adverse possession of that land.”
The onus is on the person or persons claiming adverse possession:
“.. 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 evasion). So the Applicant s 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 purpose or by any endeavours to interrupt it or by any recurrent consideration’’
14 The principle of adverse possession was more elaborately set out In Ongwen & another v Keya & another (Environment & Land Case E027 of 2021) [2023] KEELC 279 (KLR) the court stated;-
29.This right to be adverse to land does not automatically accrue unless the person in whom this right has accrued takes action. Section 38 of the Act gives authority to the claimant to apply to Court for orders of adverse possession. See the findings of the Court in Malindi App No. 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR where it held;
30.Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner.
15 From the above set of case law and statute, it is settled law that claims of adverse possession must be against the registered owner of the suit property, for that reason proof of existence of the suit property and its registration are requisite. In the instant case, the 1st Applicant produced a green card which showed the Respondent is the registered owner of the suit property having been registered on 8/10/87.
16 Further the claimant must take action by moving the court of competent jurisdiction appropriately. The provisions of Section 17 of the Limitation of Actions Act, specify that at the expiration of the period of 12 years from the date of entry to land, a person can bring an action to recover land, and the title of the registered proprietor is extinguished. In addition, Section 38 of the Act, further provides for litigation of adverse possession claims in courts of competent jurisdiction.
17 Based on the foregoing and up to this point the court finds that the suit is competent.
18 Arising from the statutory provisions cited and case law above it was incumbent upon the Applicant to prove actual possession for the uninterrupted period of 12 years to the exclusion of the Respondents and without the former’s permission.
19 With regard to the 12 years period time started running for purposes of adverse possession from the date the Respondent was entered as the registered owner on 8/10/87. This suit was filed in November 2023 which in my calculation is over 30 years and satisfies the Limitation period.
20 I must now discuss the requirement for possession and occupation which is a key ingredient of adverse possession as seen from case law above. The 1st Applicant’s testimony was that he has together with his extended family been in occupation of the suit property from the year 1970 and they had always lived on the suit property. PW1 on inquiry by the court stated that during adjudication he was on the suit property and was an adult by then as he had one child. What evidence did the applicants present in proof of occupation?
21 PW1 produced a bundle of photographs (PEX2). The photographs from my review showed some semi-permanent houses. I also saw a goat and a cow. The court inquired of PW1 when the structures in the exhibit were erected. PW1 told the court that he had built the houses in 1970 which prima facie was not convincing to me. The witness further disclosed that he had not managed to take photos of Bakari’s houses, the 2nd Applicant. There was no explanation why he did not take photos of the same.
22 But be that as it may there was nothing before court to create the confidence that these indeed were photos taken from the suit property. I had no certificate as required by Sections 106A and 106B of the Evidence Act. These are photos taken as recent as the year 2023 and Counsel should have known better. Further assuming the said certificate was presented would the photos as presented suffice for proof of occupation? In my view no. A ground status report would be more convincing to corroborate what is on the ground , the activities on the property and that the suit adversely occupied exists on the ground and that it is the same suit represented in the green card.
23 Further from the green card presented and PW1 evidence the suit property measures approximately 14.6 Ha. On being asked by the court the size of the portion occupied the witnesses stated the land was 30 acres and he occupies about 20 acres. I had nothing before me to corroborate PW1 was occupying 20 acres which I could not confirm from the photos presented. The 2nd Applicant was said to be in court was never called to testify or any of the extended family members.
24 I think I have said enough to show that the Applicants have not discharged the burden of proof on their claim for adverse possession having failed to prove possession which is one of the pillars of the doctrine of adverse possession.
25 The upshot of the above is that the Applicants Originating Summons dated 2nd November 2023 is hereby dismissed . I make no orders as to costs.
Orders accordingly
Judgement dated signed and delivered this 11th day of November 2024
Ms. Mukabane for the Applicant
No Appearance for the Respondent
Asmaa Maftah – court assistant