Malcolm Bell v. Daniel Toroitich arap Moi & Another [2012] eKLR (www.kenyalaw.org)
Civil Appeal No. 129 of 2006
Court of Appeal, at Nakuru
Waki, Koome and Okwengu, JJ.A
August 9, 2012
The Court of Appeal has ordered Hon. Daniel Toroitich arap Moi, the first respodent, to surrender 100 acres of land to Mr. Malcolm Bell, the appellant, within six months or face eviction. This was a reversal of a High Court decision that had allowed Moi High School, Kabarak, the second respondent, to continue occupying the land, arguing that it had acquired a title through adverse possession.Judgment was delivered by Lady Justice Martha Koome with Lady Justice Hannah Okwengu concurring.
FACTS:
Malcolm is the registered proprietor of LR NO 6207/02 (the suit land) which land is adjacent to Moi High School, Kabarak. He inherited the land from his father the late Walter Bell (Walter) who passed away in 1997. Malcolm became the registered proprietor of the suit land pursuant to a Transfer and Assent that was registered on 19th May, 2000. According to Malcolm, in or around 1981, his father, then the proprietor of the suit land, surrendered 100 acres of the suit land to the School. Subsequently, in 1986, the school encroached into the suit land by fencing off approximately 110 acres.
After the death of Walter and after the former President retired from office as the President of Republic of Kenya, Malcom instituted the first suit for perpetual injunction restraining the respondents from occupation of the suit property and an order for eviction compelling the respondents to move out of the suit property.
The former President subsequently filed a defence averring that Moi High School Kabarak was built on a portion of 1080 acres of land which was donated to it from part of his own land. He contented that the 100 acres of land donated by the late Mr. Walter had always been exclusively farmed by the school continuously and uninterrupted since 1981.
The Board of Governors of the school also filed an originating summons against Malcolm based on the grounds that the school entered into, fenced, used and developed the suit land pursuant to a void transaction between the school and Walter in 1981. The school averred that by 1995, when Walter was the title holder, the school had acquired the title to the said portion by adverse possession and that the law of limitation had barred him from lodging any claim.
It was further contended by the school that between 1982 and 1997 when Walter died, a period of twelve years provided by law on adverse possession, had elapsed and that for all that period, Walter never claimed rent or vacant possession of the suit land and Malcolm could not legally inherit the suit land.
This originating summons was filed in the cause of the proceedings of the suit filed earlier by Malcolm and the court subsequently consolidated the two suits. Pursuant to the consolidation of the two suits, Malcolm filed an amended plaint in which he averred that Hon. Moi and the school were one and the same entity.
To support his claim seeking a perpetual injunction and an eviction order against Moi and the school, Malcolm adduced evidence that his late father was coerced to surrender 100 acres to the school failure to which dire consequences such as losing the entire parcel of land would ensue. Malcolm’s evidence was that his father could not take legal action while Moi was still in office. He also denied that there was any formal agreement in respect of the suit land, either for sale or by way of barter trade or as a gift to Moi or to the School.
On the part of the defence, three witnesses who were close friends of the late Walter testified that Walter was happy to surrender the 100 acres and in exchange he was to get electricity supply, a borehole and a cattle dip.
The witnesses further adduced evidence that before his death, Walter had intended to transfer the portion of land to the school if electricity was supplied to his farm. Further evidence by the principal of the school was that the school had been in occupation of the suit land from 1981 and the occupation had never been disturbed until Malcolm purported to issue a notice of eviction.
In the trial court, the court disbelieved Malcolm’s evidence and made a finding that the school is a different entity from Moi and also made a finding that t the school was able to prove the claim of adverse possession of the disputed land for a period of over twenty years. He therefore ordered Malcolm to transfer the suit land within 30 days to the respondents upon which Malcolm appealed.
In the Court of Appeal, it was submitted on behalf of the appellant that where possession of land was with the consent of the registered owner, such possession could not be adverse at the same time. In this case, the school was in possession of the suit property with the consent of Walter until his death and time started running immediately the demand of vacant possession was made.
After re-evaluating the evidence on record from trial court, Justice Koome first had to determine whether the school had acquired title to the suit land by way of adverse possession as found by trial court. She observed that the school had evidentiary burden of proving that it was in exclusive possession of the suit land for a continuous period of twelve years without any interruption.
Further the judge observed that another auxillary issue to determine was whether the school was in possession of the suit land with permission of the registered owner or used force, with the help of Moi, to grab the suit land. In determining these issues, the Court of Appeal was of the view that the trial court had overlooked or otherwise misdirected itself on the matter of how the school came into possession of the suit land.
Justice Koome observed that adversity presupposes that possession was open, continuous and hostile to the rights of the registered owner for a period of 12 years. Bearing this in mind, she stated that if the school had a licence to occupy the suit land, the licence came to an end when Malcolm, who was the successor in title of the registered owner, made a demand for return of the land. The judge concluded therefore that adversity started when demand was made by Malcolm and for this reason, adverse possession did not last for 12 years.
Having re-evaluated the evidence, the Court of Appeal further determined that the late Walter did not transfer the suit land to the respondents. Justice Koome opined that if it was Walter’s intention to transfer the 100 acres to the school, then he could have provided for this in his elaborate Will.
Finally, it was the court’s view that since the legal status of the school could not be established from the evidence, Malcolm was justified in filing the suit against Moi. Justice Koome observed that Malcolm was able to prove that he was the registered owner of all parcel of land known as LR 6207/02 which included the suit land.
For this reason, the Court held that the appellant was entitled to possession of his own property as the school had failed to prove the claim of adverse possession. The Court therefore ordered the respondents to move out of the suit property within six [6] months and hand over vacant possession to the appellant in default of which eviction would be effected without further recourse to court.
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