Monica Mwihaki Kibiri v Wilson Kamau Muthogo & 6 others

2. It was the appellant’s case that she and her husband entered the suit property in 1966, put up structures, and settled Page 2 of 15

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therein. She averred that at the time, they were aware that the suit property was registered to one Gathungu Gikunya. She contended that the said Gathungu Gikunya was presumed dead by an order of the court, and the respondents obtained a grant of letters of administration intestate to administer his estate. The suit property was distributed to the respondents as the beneficiaries in equal share. The appellant urged that she continued to enjoy quiet possession of the suit property until sometime in 2009 when the respondents, through the area chief, demanded that she vacates the suit property. She contended that she had acquired prescriptive rights over the suit property by way of adverse possession, and that the succession proceedings that transferred the suit property to the respondents were moot. 3. The 1st respondent, in response, averred that the appellant’s late husband, Kibiri Kabera, was appointed guardian and manager of the suit property which belonged to Gathungu Gikunya (the deceased). After it emerged that the deceased had disappeared and was presumed dead, the respondents, who are relatives of the deceased, approached the probate court vide Nairobi Succession Cause No. 3082 of 2005, and the 1st respondent Page 3 of 15 was appointed the

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administrator of the estate of the Page 4 of 15

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deceased. He averred that the appellant’s late husband appeared before the clan elders on 25 th July, 2005, and stated that he had no claim over the estate of the deceased. He deponed that the appellant and her family resided on parcel L.R. No. Loc 19/Nyakianga/341, and not the suit property. 4. The 1st respondent further deponed that after the grant of letters of administration intestate was issued to the respondents, it was confirmed on 29 th January, 2008, the appellant moved the probate court to have the said grant revoked, vide Nairobi Succession Cause No. 3082 of 2005. The appellant claimed that she was related to the deceased. The application was dismissed by a ruling of the court dated 19th November, 2009. The respondents urged that the appellant’s son lodged a caution over the suit property after the estate of the deceased was distributed, which caution was later lifted. The respondents were thereafter registered as the proprietors of the suit property on 19th March, 2008. 5. The case was heard by way of viva voce evidence. The appellant (PW1) reiterated the averments made in her pleadings. She testified that the suit property was originally registered to one Muraguri Wa Gathungu, her late Page 5 of 15

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husband’s grandfather, and was inherited by the Gathungu Gikunya (the deceased), who Page 6 of 15

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was Muraguri’s nephew. She stated that when the deceased disappeared, her late husband obtained a court order in Misc. Application No. 10 of 2007, in which the deceased was presumed dead. She testified that her late husband died before he could institute succession proceedings in relation to the estate of the deceased. She stated that the respondents obtained a grant of letters of administration intestate in relation to the estate of the deceased, which grant was confirmed, and the suit property was transferred to them. It was her evidence that she has been in possession of the suit property, and does not own any other parcel of land. She testified that her late husband allowed some of the respondents to till on a portion of the suit property. 6. Esther Wairimu Gathungu (the 2nd respondent) testified as DW1. It was her evidence that her husband was a stepbrother of the deceased (Gathungu Gakunya). She told the court that the appellant together with the respondents all cultivated the suit property. Wilson Kamau (1 st respondent) gave evidence as DW2. It was his evidence that he shared the same great grandfather with the deceased. He stated that the appellant’s late husband was not related to the deceased, and that he owned a different parcel of land, Page 7 of 15

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parcel No. Loc Page 8 of 15

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19/Nyakianga/341, where the appellants and her sons reside. He testified that vide High Succession Cause No. 3082 of 2009, the suit property was distributed to the respondents in equal shares, and they were subsequently registered as the proprietors. 7. After hearing the parties, Ombwayo J., in a judgment dated 7th September, 2016, found in favour of the respondents. The learned Judge determined that the appellant failed to establish her claim to the suit property by way of adverse possession. He found that the appellant and her late husband had permission to occupy the suit property, as the legally appointed guardians of the deceased and could not therefore claim ownership of the same. 8. Aggrieved by this decision, the appellant proffered four (4) grounds of appeal, in her memorandum of appeal dated 13 th February, 2017. In summary, the appellant was of the view that the learned Judge misapprehended and misapplied the law on adverse possession. She was aggrieved by the holding of the learned Judge which determined that she had failed to meet the threshold required to declare her an adverse possessor. 9. The appeal was canvassed by way of written submissions. During plenary hearing, Mr. Nderi for the appellant briefly Page 9 of 15

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highlighted the said submissions and stated that the suit property was registered to one Muraguri Gathungu, and upon his demise, it was transferred to Gathungu Gikunya (the deceased) as his heir. He urged that at the time, the whereabouts of Gathungu Gikunya were unknown, and the appellant’s husband was appointed as the guardian and manager of the suit property, pending the return of the deceased. He urged that the appellant and her husband entered the suit property on that premise, and settled thereupon. They granted license to some of the respondents to farm on a portion of the suit property. He explained that the parties lived in harmony until sometime in 2009 when the appellant was ordered to vacate the suit property after the death of her husband. 10. It was his submission that the appellant tried unsuccessfully to revoke the grant issued to the respondents, that led them to become registered as the owners of the suit property. He maintained that the appellant’s occupation of the suit property was not denied by the respondents. He submitted that the appellant’s husband was appointed as a guardian by the court, and was not given permission to stay on the suit property by the registered owner. As such, he urged that the appellant’s Page 10 of 15

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claim for adverse possession was tenable, as the deceased’s claim on the suit property extinguished after the expiration of twelve years. 11. There was no appearance by the respondents during the plenary hearing though served. This Court considered their written submissions which they had earlier filed. In rebuttal, the respondents submitted that it was not in dispute that the appellant entered the suit property in 1967 and began cultivating the same. The respondents averred that the said entry was by virtue of a court order in Kangema African Court Civil Case No. 8/5/66, which appointed the appellant’s late husband as the manager of the suit property. It was their submission that the appellant and her husband had consent to occupy the suit property, and that their possession was not adverse. They further urged that they have been cultivating the suit property alongside the appellant. 12. This being a first appeal, our duty was well stated in Abok James Odera T/A A.J. Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, where this Court held: “This being a first appeal, we are reminded of Page 11 of 15

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our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the Page 12 of 15

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conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 13. We have carefully considered the grounds of appeal, the record of appeal and the submissions made by counsel for the parties to the appeal. The issue for determination is whether the appellant, established, on a balance of probabilities, that she is entitled to be declared the owner of the suit parcel of land by adverse possession. 14. For the appellant to succeed in her claim to be declared the owner of the suit property by adverse possession, she is required to establish that she was in actual possession of the land, and had been in continuous possession for a period of over twelve (12) years, in an open and notorious exclusive possession without the permission of registered owner. 15. The legal foundation of a claim for adverse possession is section 7 and 38 of the Limitation of Actions Act which provides thus. Section 7: “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 whom he claims to that person.” Page 13 of 15

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Section 38(1): Page 14 of 15

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“Where a person claims to have become entitled by adverse possession to the land registered under any of the Acts cited in section 37, he may apply to the High Court for an order that he be registered as the proprietor of the land in place of the registered proprietor.” 16. This Court in Wilson Kazungu Katera & 101 others v. Salim Abdalla Bakahwein & another [2015] KECA 728 (KLR) held thus: “From all these provisions, what amounts to adverse possession? First, the parcel of land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner, lastly, he must have been in that occupation for a period of excess of twelve years having dispossessed the other or there having been discontinuance of possession by the owner. This Concept of adverse possession discourse has and been subject decisions of of many this Court. Suffice to mention but two, Kasuve v. Mwani Investment Ltd & 4 others [2004] 1KLR 184 and Wanje v. Saikwa (2) (supra). In the first decision, the Court was emphatic that 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 Page 15 of 15

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for a period of twelve years either after dispossessing the owner discontinuous of possession by the Page 16 of 15 or by

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owner on his volition. In the Wanje case, the Court went further and took the view that in order to acquire by statute of limitations, a title to land which has a known owner, the owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it and that what constitutes dispossession of a proprietor are acts done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use.” 17. In the present appeal, it was common ground that the suit parcel of land was registered to one Gathungu Gikunya. Gathungu Gikunya disappeared in 1954. He was never to be seen again. In 2007, an application by the appellant’s late husband to have the said Gathungu Gikunya presumed dead was filed before Court vide Muranga Principal Magistrate’s Court Misc. Application No. 10 of 2007. Another similar application had earlier been filed by the 1 st respondent before the High Court at Nairobi. i.e Nairobi High Court Misc. Application No. 66 of 1999 (OS). Both applications were allowed. 18. From the evidence adduced before the ELC, there is no dispute that the appellant and her husband Kibiri Kabera (deceased) took possession of the suit property in 1966. Page 17 of 15

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They took Page 18 of 15

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possession after being appointed as guardian and managers of the suit property on 5 th July 1966 by the court in Kangema African Court civil case No.8/5/66 pending the return of the said Gathungu Gikunya. As is evident from the evidence adduced before the trial court, he did not return hence he was presumed dead after disappearing for a period of over forty (40) years. 19. During this entire period, until 2009, the appellant and her husband were in possession of the suit property. They had erected a small house on the property and continuously cultivated the land until the death of the appellant’s husband on 30th May 2008. 20. Although the respondents contended that the appellant and her husband entered the suit property with the permission of the court, and, therefore, they were trustees and not adverse possessors, our re-evaluation of the evidence leads us to a different conclusion. The respondents admitted in their evidence that indeed the appellant and her husband were in continuous and exclusive possession of the suit property during the material period spanning four (4) decades. At some point, the appellant and her husband allowed the respondents’ family Page 19 of 15

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to cultivate a portion of the suit property measuring about an acre. 21. When assessing the evidence presented before him, the learned trial Judge held thus: “Though the green card shows that the defendants are the registered owners, the plaintiff established that he has been in possession since 1966 and have put up structures and farmed on the land. They have occupied interruptions deceased. from The the land without the family of defendants’ the evidence is merely to justify their title and not that they are in possession of the suit property. It appears that since the disappearance of Gathungu Gikunya, the plaintiffs have been in possession of the parcel of land as managers without interruption from the plaintiff (defendants’) until after Succession. This is because the plaintiffs’ late husband Kibiri Kabera was appointed as a guardian Loc/9/Nyakiange/350 and manager after the of Kangema Africa Court found in Civil Case No. 5/6/66 found (sic) that Gathungu Gikunya was the heir of the property. Kibiri Kabera in his own words applied to be the guardian of the property which was registered in the name of Gathungu Gikunya therefore he took Page 20 of 15

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possession Page 21 of 15

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of the property as a trustee and therefore his family cannot claim adverse possession.” 22. With due respect to the learned Judge, the conclusion reached was contrary to the evidence that was adduced by the parties before him. It was evident that the entire basis of the respondents’ claim to the suit property was their registration as the owners of the suit property in transmission pursuant to succession proceedings in Nairobi High Court Succession Case No. 3082 of 2005. The respondents had petitioned the Court to inherit the suit property on the basis that they were distant relatives of Gathungu Gikunya. However, by the time the Succession Cause was filed, the appellant and her husband had already acquired title of the suit property by adverse possession. 23. We are satisfied, from the evidence adduced before the trial court that, whereas the appellant and her husband took occupation of the suit property pursuant to a court order to manage the suit property while awaiting the return of Gathungu Gikunya, once he did not return, time started running against him as the registered proprietor for the purposes of determining whether the appellant and her late husband acquired title by adverse possession. By the time Page 22 of 15

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the respondents purported to inherit the suit property, the Page 23 of 15

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appellant and her late husband had already acquired title on the application of the doctrine of adverse possession. Their occupation and possession of the suit property pursuant to the Court Order did not create a trust relationship that would benefit other persons other than the appellant as held by the trial court. 24. The appellant was able to establish, to the required standard of proof, that they were in actual possession of the suit property for a period of more than forty years which exceeded the statutory period of twelve years. They stayed on the suit parcel of land openly and notoriously without interference from the registered owner or any third party. The respondents acknowledged this fact in their evidence. Their possession and occupation of the suit parcel of land had resulted in the dispossession of the registered owner of the title to the suit property. 25. In the premises, therefore, we find the appeal meritorious. It is hereby allowed. The Judgment of the ELC dated 7th September, 2016 and delivered on 5th October, 2016 is hereby set aside and substituted by a Judgment of this Court allowing the appellant’s suit with costs. Page 24 of 15

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26. For the avoidance of doubt, the title issued to the respondents in respect of the suit property is hereby ordered cancelled. The appellant shall be registered as the owner of the suit property forthwith. The appellant shall be restored into possession of the suit property with immediate effect. The respondents secured possession by extra judicial means. If any respondents are in occupation of the suit property, they are hereby granted sixty (60) days from the date of this Judgment to vacate the suit property or in default an eviction to issue. 27. The appellant shall have the costs of appeal. Dated and delivered at Nyeri this 25th day of September, 2026. W. KARANJA .......................... ... JUDGE OF APPEAL JAMILA MOHAMMED .......................... ... JUDGE OF APPEAL L. KIMARU .......................... .. JUDGE OF APPEAL I certify that this is a true copy of original. Page 25 of 15

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Signed DEPUTY REGISTRAR Page 26 of 15

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