Case ID:159744

John Mburu Ngure v Pauline Njoki Ngure [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 237 of 2018(O.S)

Parties:

John Mburu Ngure v Pauline Njoki Ngure

Date Delivered:

15 Jun 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

John Mburu Ngure v Pauline Njoki Ngure [2020] eKLR

Court Division:

Environment and Land

County:

Kiambu

Case Outcome:

Originating Summons allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KEYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC 237 OF 2018(O.S)

JOHN MBURU NGURE....................................PLAINTIFF

VERSUS

PAULINE NJOKI NGURE.............................DEFENDANT

JUDGMENT

Vide an

Originating Summons

dated

19

th

September 2018

, the Plaintiff herein brought this suit against the Defendant seeking for orders that:-

a) The Honourable Court be pleased to make a declaration that the Plaintiff is entitled to a half portion of land parcel

No.Kabete/Gikuni/T.91,

by virtue of adverse possession.

b) The Plaintiff be registered as the proprietor of half portion of Land Parcel

L.R No.Kabete/Gikuni/T.91

.

c) The costs of this suit be borne by the Defendant.

In his

Supporting Affidavit,

the Plaintiff averred that the Defendant is the daughter of his late sister one

Faith Wanjiru Ngure

. He averred that the suit property belonged to his father the late

Dishon Ngure Ndungu

. He further averred that his late father lived in the suit property until

2002

and that his house still stands. He contended that he has developed on the suit property and that the suit property was to be shared between him and his brother and that they have both developed it and constructed their houses.

It was his contention that in the year

1997,

his niece obtained the title to the suit property fraudulently as the caution that they had placed was removed without recourse or notifying them, that the transfer and the issuance of the title was hurriedly done in the absence of his late father and that the Defendant was not present when the caution was removed, the transfer effected and the title issued. He averred that no transfer can be effected in the absence of both the transferor and the transferee. That it is impossible to remove a caution, call for Land Control Board, effect transfer and issue a titled deed on the same day

He further averred that he has been in

continuous

and

uninterrupted

occupation of the suit property for a period of more than

12 years

to warrant his claim for adverse possession.

Despite service the Defendant did not enter appearance and the suit therefore proceeded by way of formal proof wherein the Plaintiff testified for himself.

PLANTIFF’S CASE

PW1 - John Mburu Ngure,

adopted his witness statement dated

19

th

September 2018

. He further produced his list of documents as

Exhibit 1

in Court. He urged the Court to allow his claim.

The Defendant despite service failed to enter appearance, file a Defence and hence failed to defend the suit. However, the Plaintiff is the one who has alleged and he has a duty to prove his case. As provided by

Section 107

of the

Evidence Act

, the Plaintiff has a duty to call evidence and prove his case on the required standard. The said Section states:-

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The Court still has a duty to interrogate the evidence produced before it in order to arrive at as just determination as exparte evidence is not automatic prove of a case. See the

case of

Gichinga Kibutha..Vs..Caroline

Carooline Nduku (2018) eKLR

,

where

the Court held that:-

“

It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

It is the Plaintiff’s contention that the suit property that he is claiming initially belonged to his father and that he had built on the suit property after his father gave him and his brother the said portion of land. However the Plaintiff has laid a claim of ownership by virtue of adverse possession. It is this Court’s duty to interrogate whether he is entitled to the grant of ownership of the suit property through adverse possession.

It is the Plaintiff’s claim that his niece fraudulently registered the suit property in her name in the year

1997.

The Court has seen a certificate of official search that indicates that

Pauline Njoki Ngure

was registered as the proprietor of the property on

19

th

February 1997

.

The Plaintiff has averred that he has been in

open, uninterrupted

and

continuous

occupation of the suit property even before his father had died and that was way before the Defendant was registered as owner of the suit property. The Defendant was registered as the owner in

1997,

and the Plaintiff filed the instant suit

21 years

later after her registration. The Plaintiff produced evidence of structures showing that he had been in occupation. The Court finds that in the absence of any evidence to controvert the Plaintiff’s evidence that he has been in continuous uninterrupted occupation of the suit property with the knowledge of the Defendant and to her adverse interests, his evidence is therefore believable.

It is the Court’ considered view that the Plaintiffs have been in open, notorious, continuous and uninterrupted occupation of the suit property. In the case of

Wambugu …Vs… Njuguna (1983) KLR 172,

the Court of Appeal stated as follows relying on the decision in

Littledale…Vs… Liverpool College

(1990) I Ch. 19

:

“

The next question therefore is what constitutes dispossession of the proprietor. Bramwell LJ in Leigh v Jack said at 273, that to defeat a title by dispossessing the former owner acts must be done which are inconsistent with

his enjoyment of the soil for the purpose for which he intended to use it”

Therefore, the Court holds and finds that the Plaintiff has established the threshold for grant of an order of ownership by virtue of adverse possession. Consequently, his claim as sought in the instant

Originating Summons

is merited

Section 38 (1)

and

(2)

of

Limitation of the Actions Act

provides

as follows:

(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.

It is the Court’s considered view therefore that the Plaintiff having established that he has acquired the suit property by way of adverse possession, then he is entitled to the orders sought.

On the issue of costs, the Court finds that

Section 27

of the

Civil Procedure Act

, gives it discretion to grant Costs. The Plaintiff being the successful litigant is entitled to costs of the

Originating Summons

herein.

Having now carefully read and considered the pleadings and evidence adduced and the written submissions, the Court finds and holds that the Plaintiff has proved his case on the required standard of balance of probabilities. Consequently the Court finds the

Originating Summons

dated

19

th

September 2018

is merited and the same is allowed entirely in terms of prayers No.(a) & (b), with costs to the Plaintiff.

It is ordered.

Dated, Signed

and

Delivered

at

Thika

this

15

th

day of June 2020

.

L. GACHERU

JUDGE

15/6/2020

Court Assistant - Jackline

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Judgment

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

By Consent of:

None for the Plaintiff

None for the Defendant

L. GACHERU

JUDGE

15/6/2020