[2023] KEELC 22075 (KLR)

Abwao & 2 others v Lwanga (Environment & Land Case 22 of 2018) [2023] KEELC 22075 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22075 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 22 of 2018

FO Nyagaka, J

December 7, 2023

Between

Pamela Alividza Abwao

1st Plaintiff

Margarita Kandenyi

2nd Plaintiff

Stella Nangendo

3rd Plaintiff

and

Christine Lwanga

Defendant

Judgment

1. Pamela ALividza, Margarita Kandenyi and Stella Nandendo, the 1st 2nd and 3rd Plaintiffs herein respectively lodged in this Court a Plaint dated 21st February 2018. It was verified by the Affidavit of the Pamela Alividza deposed to on a similar date.

2. It is the Plaintiffs’ claim that they were the registered owners of two parcels of land known as L.R No. 17839/41 and L.R No. 17839/42, situated in South West of Kitale Town, measuring 4. 654 Ha and 3. 551 Ha respectively.

3. The Plaintiff pleaded that sometimes the year 1994, their mother, Pricscilla Ingasian Abwao (deceased) sold 11. 5 acres in L.R 17839/41 to Charles Lwanga (Deceased), the husband of Christine Lwanga, the Defendant herein.

4. The Plaintiffs pleaded that before the demise of their mother and that of the Defendant’s husband, they lived peacefully. However, after their death, the Defendant started interfering with the beacons marking the common boundary between L.R 17839/41 and L.R 17839/42.

5. They posited that the Defendant had encroached, trespassed and unlawfully used part of L.R 17839/42 to their detriment. On the foregoing basis, the Plaintiffs prayed for the following reliefs;i.An Order directing the County Land Registrar and the County Surveyor to establish and or determine the common boundary between L.R No. 17839/41 and L.R No. 17839/42 and file their findings in Court.ii.A Permanent injunction to issue restraining the Defendant, her agents and or servants from tempering with beacons marking the common boundary between L.R No. 17839/41 and L.R No. 17839/42 and or encroaching, trespassing into L.R No. 17839/42 or in any way dealing with L.R No. 17838/42. iii.Costs of the suit together with interests therein.iv.Any other relied that the Honourable Court deem fit to grant.

The Oral Evidence 6. The 1st Plaintiff adopted her statement dated 21st February as her evidence. It was her case that her mother sold 11 ½ acres from title no. L.R 17839/3 to Charles Lwanga on 11th July 1994. She produced the Sale Agreement as PExh2.

7. It was her evidence that when they went to the Land Control Board to transfer the 11 ½ acres, the Defendant’s husband expressed interests in the remaining portion that was 8 ½ acres.

8. It was her testimony that the Defendant’s husband died before he purchased the said land and that they obtained the title by way of subdivision.

9. It was her case that their mother’s land was L.R No. 8955 and when she subdivided her portion theirs became 17839/3 which was more than 20 acres. She stated that by the time her mother was selling the land, it was in their names.

10. It was her evidence that the Defendant’s husband did not obtain the title of the 11 ½ acres but he took possession of it. She stated that the Title L.R No. 17839/3 does not exist anymore and they surrendered it when they subdivided it to the other buyers.

11. It was her case that upon subdivision, L.R No. 17839/41 and L.R No. 17839/42 remained in their names. To that end, she produced Titles to the land as P.Exh3(a) and (b) respectively.

12. She gave evidence further that L.R No. 17839/41 is the portion of land the Defendant’s husband purchased and the remainder, L.R No. 17839/42 being 8 ½ acres was not purchased by him.

13. She testified that the Defendant has encroached on L.R No. 17839/42 and was using most of it and all they wanted was her to remain on the 11 ½ acres. She produced the Court Order and Report of the Survey as P. Exh 4(a) & (b. The witness further Marked for Identification the Map showing subdivision of L.R. No. 17839/3 as PMFI 5. She stated that they only held the title L.R. No.17839/41 in trust for the Defendant.

14. During cross examination, she stated that her mother sold 11 ½ acres going all the way to the river. She stated that Clause 1 reads 11 ½ acres plus bordering river reserve would be curved out of L.R 17839/3.

15. She stated that they did not report the encroachment of the Defendant since they knew that her husband had wanted to purchase the land. Hers was that entire beacons were removed from the land on the side that the Defendant’s husband bought.

16. Pursuant to the Order of this Court Emmanuel Mutange, a Surveyor in Trans-Nzoia County, testified as PW2, he stated that he visited the disputed land on 28th November 2018. During the visit the Plaintiff, the Land Registrar and Boniface (a representative of The Defendant) herein were present. He stated that the beacons had been removed. He produced the letter dated 3rd December 2018 he wrote to the area chief and his report as P.Exh 4(c) and (d) respectively.

17. On cross examination, it was his evidence that the beacons were placed during the Survey but he was not present. It was his case that he would not know if the houses built were on Parcel No. L.R 17839/42 and who had encroached on whose land.

The Defendant’s Case. 18. Christine Lwanga challenged the Plaint through the Amended Statement of Defence and Counterclaim dated 7th May 2019. She averred that the plaintiffs became registered owners of the L.R No. 17839/41 and L.R No. 17842 measuring approximately 4. 654 and 3. 551 Hectares respectively on 10th April 2014.

19. The Defendant pleaded that contrary to the averments by the Plaintiffs, her husband purchased land measuring 11. 5 acres plus the bordering river reserve from the Plaintiffs’ mother on 11th July 1994 at Kshs. 800,000/-.

20. She pleaded that the purchased land was to be curved off from L.R No. 17839/3 and as of 1994, Land Reference No. 1789/41 was non-existent. She posited that it only came into existence in 2014.

21. The Defendant claimed that contrary to the Plaintiffs assertions, the sub-division of the suit land was done secretly and fraudulently so as to frustrate her. It was her case that the issue of interfering with beacons do not arise at all. She pleaded that the Title to parcels L.R. No. 1789/41 and L.R No. 17839 was issued to the Plaintiff’s in the year 2014 and her occupation of the suit land is adverse to their Title. She stated that the suit was barred by the Limitation of Actions Act and ought to be dismissed with costs.

22. Without prejudice to the foregoing, the Defendant averred that the Title to the L.R No. 17839/42 and L.R. No. 17839/41 issued on 10th April 2014 while her husband was still alive and his entitlement to the land known to the Plaintiffs, there was an act of fraud on the part of Plaintiffs in processing of the suit land Title Deeds.

23. In setting out the particulars of fraud, the Defendant claimed that the Plaintiffs failed to disclose the entitlement when it was known to them. She stated further that the Plaintiff colluded with the Land Registrar to illegally and unlawfully process a Title Deed in their favour.

24. The Defendant asserted further that failing to disclose that the suit property is subject to distribution between all the beneficiaries of the estate of Priscilla Ingasiani Abwao was fraudulent on the part of the Plaintiffs.

25. In the Counterclaim, it was the Defendant’s case that immediately after the execution of the Sale Agreement, survey works were done in the presence of the Plaintiffs’ Mother and her Husband in the year 1994 whereafter they took possession of the land together with the river reserve and started developments.

26. She pleaded that her husband’s remains were buried on the same land, L.R No. 17839/42, which the Plaintiffs secretly subdivided into two portions being L.R No. 18839/41 and L.R No. 17839/42. The Defendant claimed that the Plaintiff now purport to constrain her to L.R No. 17839/41 which is non-arable and the river reserve.

27. Based on the foregoing factual basis the Defendant urged this Court to dismiss the Plaintiff’s case. She prayed for the following reliefs;a.A declaration that the Defendant/Applicant is the true owner/beneficial and/or equitable owner of the suit land being L.R No. 17839/41 and L.R No. 17839/42 and the Plaintiff are holding the Title on her behalf.b.An order cancelling the Title Deeds in the names of Plaintiffs/Respondents and the same to be issued in the name of the Defendant/Applicant.c.Costs and interest.d.Any other suit (sic) the honourable court may deem just and fit to grant.

The Oral Evidence 28. Christine Lwanga testified as DW1. She adopted her undated statement as evidence.

29. It was her evidence that her husband bought 11. 5 acres plus boundary/bordering river reserve. He relied on the original Agreement dated 11th July 1994 as D.Exh 1.

30. It was her case that she did not know where Parcel No. 41 and 42 are exactly. She stated that where they bought there were two houses which were sold to them for Kshs. 10,000/-.

31. She produced the Application and Consent from the Land Control Board as D.Exh 2(a) & (b) and the letter that her late husband wrote to the administrator of the estate of the Plaintiffs’ mother and the response thereof as D.Exh. 3 and 4 respectively.

32. She further referred to two other letters requesting for the title to the land as D.Exh5 and 6 which were never responded to. It was her case that the letters indicated that he had bought both portion No. 41 and 42.

33. She stated that her husband was buried outside the house they bought, which has become parcel No. 42 and that when she buried him, there was no complaint. She stated that when the land was sub-divided, she was not involved or notified. She stated that she did not remove beacons and had been using all the land. She stated that she only wanted the stretch that is hers from up-hill to the river.

The Submissions 34. The Plaintiff filed written submissions dated 20th June 2023. The Defendant’s Submissions were undated. Their full tenor is analysed in the succeeding paragraphs.

Issues for Determination 35. Having carefully appreciated the Parties’ respective pleadings, the evidence adduced and submissions, the only issue that lends itself for resolution is;a.A determination of the portion of land sold to the Defendant’s husband

Analysis and Determination 36. It is not in dispute between the parties that indeed Pricscilla Ingasian Abwao, the Plaintiffs’ mother sold 11. 5 acres to Christine Lwanga, the Defendant’s husband. What is in dispute is the import of the Clause No. 1 of the Agreement of Sale dated 11th July 1994, produced by both parties.

37. For purposes context, I will reproduce the relevant excerpts of the Agreement of Sale. It reads as follows;Whereas the vendor is the owner of L.R No. 17839/3 situated in Trans-Nzoia district measuring 72 Hectares and is desirous of disposing her interest in 4. 65 Hectares hereinafter referred to as 11 ½ (Eleven and half Acres) by way of sale and whereas the purchaser has made an offer to purchase the same and the said offer being herein accepted;It is agreed:-1. The land sold measures 11½ Acres plus bordering river reserve.

38. I have keenly interrogated the Agreement of Sale and the clauses thereon. I appreciate that the parties, in Clause 11, made it clear that the Law of Contract Act shall apply to the Agreement.

39. Clause 1, is clear and unambiguous. The duty of this Court, therefore, is to interpret its import and not to re-write the terms thereon and impose it upon the parties.

40. In Civil Appeal No. 170 of 2013, Feba Radio (Kenya) Limited t/a Feba Radio v Ikiyu Enterprises Limited [2017] eKLR the Court of Appeal, while referring with approval to its earlier decision in Iwaji -vs- Jiwaji [1968] E.A. 547, spoke to the obligation of the Court in contractual disputes where there is no ambiguity in clauses. The learned Judges observed;In JIWAJI v JIWAJI [1968] E.A. 547, the predecessor of this Court held that “where there is no ambiguity in an agreement it must be construed according to the clear words used by the parties.” We respectfully agree with that summation of the law.

41. That said, and in view of the evidence before this Court that the portion acquired by the Defendant’s husband was 11½ acres, I now turn to the meaning of the words, ‘plus bordering river reserve’, the source of this dispute, as used in the contract.

42. The Black’s Law Dictionary doers not define the word ‘plus’. I will therefore resort to the Concise Oxford Dictionary. It defines the word at page 917 as follows;Plus:‘With the addition of’‘Additional extra;’‘Additional or positive quantity’‘An advantage, and furtherance’

43. I have carefully read the Land Act. The word ‘River Reserve’ is not defined. It, however, defines ‘Riparian Reserve’ in Section 2 in the following manner;“riparian reserve” means the land adjacent to the ocean, lake, sea, rivers, dams and water courses as provided under the Survey Act (Cap. 299) or any other written law”.

44. The evidence adduced on this case include the Map showing demarcation of the general area of South West Kitale Municipality.

45. There is a clear boundary line separating L.R No. 17839/42 and 17839/41 that runs into the river. A large portion of the river runs through the Defendants land.

46. Therefore, the question that arises, in relation to the 11½ acres is, what portion of land was referred to by the words ‘plus bordering river reserve’?

47. Taking into consideration the definition of the words in paragraph 55 and 56 hereinabove and having regard to the guidance by the Court of Appeal to construe contracts according to their clear words where there is not ambiguity, the inevitable conclusion is the plus bordering river reserve means the land adjacent to the river.

48. During cross examination of the Plaintiff, the following significant evidence came out;My mother told us that she sold 11½ Acres going all the way to the river. It was not that there was additional. The Clause reads that 11 ½ acres plus bordering river reserve would be curved out of L.R 17839/3. All those who border the river, the portion that bordered it was not sold. It depended on the river size. At times it dries.

49. It can be gathered that the phrase ‘plus bordering river reserve’ was included in the Agreement for Sale purposely to ensure that, even during those time when the river dried up, thus making the Defendants portion of land bigger that 11½ acres, that dried up portion was, in the words of Oxford Concise Dictionary the ‘additional extra, additional quantity, advantage and furtherance of the 11½ acres.

50. Therefore, the land that the Defendant can lay claim on, in addition to the 11½ Acres is only that strip of land running along the river that changes in size depending on the season.

51. In the circumstances, the Defendant’s assertion that the phrase ‘Plus Bordering Reserve’ could be construed to mean additional portion of land eating into L.R No. 17839/42 or the whole of the said land is far-fetched, a skewed construction of the Agreement of Sale designed to disenfranchise the Plaintiffs of their land.

52. The foregoing position is consistent with the Defendant’s evidence. She was categorical that the only portion of land her husband acquired and which she lays claim on and wanted title to is L.R. No 17839/41.

53. It further came out that the Defendant’s Defence and Counterclaim were diametrically opposed to the evidence she adduced orally in Court.

54. Whereas her pleadings claimed ownership of L.R No. 17839/41 and L.R No. 17839/42 and fraud on the part of the Plaintiffs, her evidence only pointed to ownership of L.R. No. 17839/41. No incidence of fraud was adduced, let alone proved.

55. In the premises, I find and hereby hold that Plaintiffs have succeeded in establishing ownership of L.R. No. 17839/42.

56. Conversely, The Defendants’ Counterclaim is without merit to the extent of that it seeks cancellation of the Title Deeds of L.R No. 17839/42, in the name of the Plaintiff and a declaration that she is the true owner/beneficial and/or equitable owner.

57. As I bring this case to a close, the Defendant’s claim of adverse possession advanced in the submissions is without proof. The entirety of the evidence adduced in Court did not corroborate that claim. In any she did not adduce evidence that she occupied a clearly demarcated portion of the Plaintiffs’ land to adversely to their exclusion.

58. In the end, the following final Orders hereby issue.i.The Defendant’s lawful portion of land is L.R No. 17839/41 and the strip adjacent to the river but not extending beyond the common boundary separating it from L.R No. 17839/42. ii.The Defendant is hereby permanently restrained from encroaching, trespassing, dealing or in any way whatsoever interfering with the Plaintiffs’ land, L.R No. 17839/42, measuring 8½ Acres (3. 551 Hectares).iii.The Plaintiffs are hereby directed to surrender to the Defendant the Title Deed to L.R No. 17839/41 within 30 days of the date herein and if the Defendant does not take it, the Plaintiffs to deposit it in Court within fifteen (15) days of the expiry of the period, for the Deputy Registrar to process it appropriately.iv.The Defendants’ Counterclaim is hereby dismissedv.The Defendant to bear the costs of the suit and the Counterclaim.

59. It is so Ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL THIS 7TH DAY OF DECEMBER, 2023. HON. DR. IURFRED NYAGAKAJUDGE, ELC KITALE