CASE BRIEF LOISE NDUTA ITOTI -VS- AZIZA SOUD HAMISI CIVIL APPEAL NO.84 OF 2019

By Boaz Kaawe

1. FACTS:

1.1. The Respondent (Aziza Soud Hamisi) by an amended originating summons dated 16th October 2015 asked the Environment and Land Court at Malindi to determine among other issues; whether she was entitled to the disputed land (Plot No.MN/III/506) by virtue of adverse possession and whether the Registrar of Titles Mombasa District Land Registry could issue a provisional Certificate to her.

1.2. The Appellant(Loise Nduta Itoti) opposed the application and countered that the disputed property belonged to her late husband and that the respondent had not been in peaceful, continuous and open occupation of the disputed property for over 12 years.

1.3. On holding, the Trial court found in favour of the respondent (Aziza Soud Hamisi) and directed the Registrar of Titles to issue her with a provisional Certificate of Title as sought there in. Aggrieved by the Trial Court’s decision, the applicant (Loise Nduta Itotia) filed this instant Appeal in the Court of Appeal at Malindi.

2. BACKGROUND:

2.1. The respondent had claimed to have occupied and settled on the disputed property in 2002 and that she had constructed a permanent residence and had carried on a business of a restaurant for the past 7 years. It was also her case that for the entire duration of her occupation of the disputed property, the registered owner (Loise Nduta Itotia) had not interfered with her in any way and that neither had anyone ever approached her for more than 12 years; for that reason the respondent prayed for the Trial Court to declare her as a registered proprietor of the disputed property.
3. LAW APPLIED:

3.1. Section 17 of the Limitation of Actions Act which provides that once the period of 12 years of adverse possession prescribed by the Act has expired without an action to recover the land, the title of the registered owner of the land stands extinguished by the operation of the law.

4. APLLICANTS CASE:

4.1. That the disputed property belonged to the Appellant’s late husband who had passed away.

4.2. That the respondent had not been in peaceful, continuous and open occupation of the disputed property for over 12 years.

4.3. That the respondent could not claim to have acquired the property through adverse possession.

4.4. That the respondent had not satisfied the threshold requirements necessary for a claim for adverse possession and;

4.5. That the respondent had not demonstrated that she was in physical occupation of the entire disputed property.

5. RESPONDENT’S CASE:

5.1. That she was in possession of the disputed property for a period of over twelve (12) years,

5.2. That she was in open, continuous and uninterrupted occupation of the disputed property.

5.3. That she had developed a permanent residence, opened an operational restaurant and cultivated and farmed on the disputed property for a period exceeding twelve(12) years, and that:

5.4. She was entitled to ownership of the disputed property by way of adverse possession.

6. CASE IN THE HIGH COURT:

6.1. The applicant (aziz Soud Hamsi) was entitled to be registered as the proprietor of the suit property by virtue of adverse possession as prayed.

6.2. The applicant had been in exclusive, open, quiet and uninterrupted possession of property for the requisite statutory period and that the respondent (Loise Nduta Itotia) was only awoken from slumber to stake a claim on the property when the suit (ELC No.122 f 2015) was filed.

7. CASE IN THE COURT OF APPEAL: (A.K. Murgor, Musinga JJA)

7.1. The Trial Court was entitled to reach the conclusion that the respondent was in the open and notorious possession of the disputed property as thus entitling her to the adverse possession of the disputed property.

7.2. The Appellant Loise Nduta Itotia had not interrogated or questioned the respondent (Aziza Soud Hamisi) on the acreage of land occupied by the house, the restaurant or the farming activities. Thus there was no such evidence controverting the respondent’s occupation of the entire property

8. ISSUES:

8.1. Whether the learned judge (O.Olola J) properly evaluated the evidence and rightly concluded that the respondent’s claim for adverse possession over the disputed property was proved on a balance of probabilities?

8.2. Whether the trial court took into account the appellant (Aziza Soud Hamisi)’s evidence?

9. DETERMINATION OF ISSUES;

9.1. Yes, the learned Judge of the trial Court had properly evaluated and rightly concluded that the respondent’s claim for adverse possession over the disputed property was proved on a balance of probability.

9.2. The respondent (Aziza) was found to have taken open and notorious possession of the entire suit property and even when the appellant’s son visited the disputed property, nothing was done to take back control of the disputed property until 2015 when the respondent instituted the court proceedings. More so from 2002 to 2015 was a period of 13 years during which the respondent had remained in open and continuous occupation of the disputed property.

9.3. Yes, the trial Court took into account the Appellant (Aziza Soud Hamisi)’s evidence.

9.4. There was evidence that the appellant (Aziza) had been using the suit property for some time and that she had been in continuous use and occupation of the suit property as supported by the evidence of the area Village Elder (PW2) as well as an employee of the National Museum of Kenya which owned an adjacent piece of land.

10. DISSENTING OPINION ;( S.Gatembu Kiaru, JA)

10.1. That the respondent’s occupation of the property was not exclusive and extended to just a portion of the property and not the entire property that measured 1.616 hectares (approximately 4 acres) and that;
10.2. In exercise of the powers of Court, under Rule 31 of the Court of Appeal Rules, Gatembu Kairu J would have rather remitted the proceedings to the ELC with directions for the parties to adduce evidence and would have directed the trial Court to take evidence to ascertain with precision the extent of the respondent’s occupation of the property as well as make any necessary consequential orders based on such evidence and allow the Appeal.

10.3. That the Trial Judge had disregarded the inconsistencies in the respondent (Aziza Hamisi)’s evidence and failed to appreciate that the respondent’s occupation of the suit property was for less than 12 years.

10.4. More so, that the judge had ignored the appellant’s defence and the evidence that the respondent had not resided on the property for a period of 12 years in total exclusion there on.

10.5. And that the respondent (Aziza) on the 26th of September 2016, after the appellant’s witness statements had been filed against her claim, filed an embellishment witness statement that her family had and were still enjoying physical and actual possession of the suit property for over 30 years contrary to the erstwhile statement alleging 12 years of uninterrupted occupancy of the suit property.