[2018] KEELC 2028 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC CASE NO. 15 OF 2005

ALI MAHMOUD JUMA....................................PLAINTIFF

VERSUS

ZUBEDA RAJAB SUMBA (wrongly sued as

ZUBEDA ATHUMAN RICH).........................DEFENDANT

JUDGMENT

1. By an amended Plaint filed on 24th July, 2012 the Plaintiff pleaded that he is the grandson of Mwana Binti Omari a.k.a Mwana Bint Omar (deceased) and was issued with the Certificate of Title under the then Land Titles Ordinance 1908 in respect of two parcels of land known as L.R No. 1513/26 and L.R 1513/28. The Plaintiff states that he is the registered and beneficial owner of L.R No. 1513/28 by virtue of being the legal administrator of the estate of the aforementioned deceased and he is the registered owner of L.R No. 1513/26 by virtue of purchase & a transfer dated 23rd October, 1978. The Plaintiff avers that the said parcels of land are duly demarcated and surveyed as shown on Deed Plans Numbers 77078 and 77076 respectively.

2. The Plaintiff pleaded that on or about December, 2004 and January 2005, the Defendant and her relatives who were in occupation of the said parcels of land as tenants-at-will of his fore parents began to claim ownership to the parcels of land. The Plaintiff states that despite terminating the tenancy of the Defendant and her relatives, they have trespassed on the subject parcels of land and erected structures.

3. The Plaintiff’s case is that the Defendant has declined to vacate the suit lands and give him vacant possession to the Plaintiff. Further, the Plaintiff contends that he has suffered substantial loss and damage as a result of the Defendant’s actions. For these reasons, the Plaintiff prays for judgment to be entered in his favour as follows:

a) A permanent injunction do issue to restrain the Defendant, her relatives agents and whomsoever claiming under her from trespassing or remaining upon and from erecting and or constructing any structure or building on land reference or land parcels Plot No. L.R No. 1513/28 and L.R No. 1513/26 Takangu Kilifi District or in any manner dealing with and/or interfering with the Plaintiff’s quiet possession use and enjoyment of the same.

b) An order directed at the Defendant, her relatives, agents and those claiming under her to deliver to the Plaintiff vacant possession of L.R No. 1513/28 and L.R No. 1413/26 respectively in default eviction orders to issue.

c) Costs of the suit.

4. The Defendant responded to the Plaint by way of an Amended Defence and Counterclaim dated 25th September 2012. The Defendant denied that she and her relatives have been tenants at will at the subject parcels of land and stated that she has been in open, permanent and continuous occupation of the lands for over 40 years without any interruption.

5. In her counterclaim, the Plaintiff averred that she was the owner of land parcels no. L.R No. 1513/28 and L.R No. 1513/26 and sought and orders declaring the Defendant’s titles as null and void and hers as valid and restraining the Defendant from entering or dealing with the suit property in any way.

6. The matter came up for hearing on 20th February, 2014. PW1, AHMED OMARI ALI testified that he knew the Plaintiff and his family members. He stated that he and the Plaintiff were brought up together by one Amina Hamisi a.k.a Bibi wa Mwinyi. He also stated that he knew Mwana Binti Omari a.k.a Mwana Binti Omar who was the sister to his grandfather, Ali Bin Omari. PW 1 avers that the Defendant had no relation with his deceased great grandmother. Upon cross examination, PW 1 admitted that it was the Defendant’s parents who lived on the suit lands and not the Defendant.

7. PW 2, ALI SHARIFF MOHAMMED, testified that he has known the Plaintiff since childhood as they were brought up together. PW 2 stated that he also knew the Plaintiff’s parents and that the Defendant had no relation with the Plaintiff’s family. Upon cross examination, PW 2 stated that he left Takaungu in 1972. He averred that one of the suit properties belonged to Mwana Binti Omar and the other to Amina Binti Hamisi. He admitted that the two plots do not belong to the same person. PW 2 also admitted that he may not be able to identify the suit lands by way of photographs.

8. The Plaintiff testified as PW 3 stating that he is the registered owner of the suit plots. He stated that he purchased plot no. 1513/28 at Kshs. 1,000/= and was issued with a certificate of title by way of gazette notice no. 5299 of 9th July 2005. With regards to plot no. 1513/26 he testified that it belonged to his great grandmother and upon her demise he was appointed the administrator of her estate. In the succession cause plot no. 1513/26 was listed as one of the deceased’s property which would be inherited by PW3 and a confirmation of grant was made to that effect. PW 3 denied that the Defendant is a great grandchild of Mwana Binti Omar (deceased).

9. PW 3 testified that he had the original title for plot no. 1513/26 that belonged to his great-grandmother. He stated that his grandparents allowed the Defendant to live on the suit land on humanitarian grounds as she and her relatives had nowhere to stay. PW3 stated that when he visited the parcels of land to fence them, the Defendant claimed to be the owner and the matter was reported to the Chief-Takaungu. PW 3 testified that the Defendant failed to produce any documentation as proof of ownership to the lands.

10. PW3 testified that the plan the Defendant was relying on as proof of ownership was in the name of another individual, one Athmani Ami. PW 3 claimed that the defendant and her relatives were still in occupation of the suit lands.

11. On cross examination, PW 3 stated that he did not know when the houses on the suit lands were built. He also admitted that he did not know when his great grandparents died. He stated that he has never occupied the suit lands since he obtained the titles. However, PW 3 admitted that it is his grandmother who had the original title for L.R No. 1513/26 but it was lost when she was moving out of the land.

12. DW 1, ABDALLAH SALMIN BATES testified that he lives in Takaungu. He stated that he knew the plots in question; L.R No. 1513/26 and 1513/28 which measure about 40by 5o and 50 by 100. He stated that there are two houses in the suit lands. DW 1 testified that while growing up he saw one old man, Mzee Zaja and his family members including his daughter who is the defendant herein reside in the two parcels of land thus he knew them as the owners of the suit parcel of lands. On cross examination, DW 1 stated that the Defendant has never showed him the titles to the suit properties.

13. DW 2, the defendant testified that the she has lived in Takaungu for over 40 years. It is her evidence that one of the plots belonged to her aunt, Binti Saidi. Further, she avers that her aunt had one child, Said Mohamed Pembe who in turn had two daughters; Zaida Mwanamichi and Bimbe. DW 2 testified that when Said and his wife died she provided foodstuffs for the daughters as they stayed on the land. She claimed that the house in which the two ladies lived collapsed and she and her sisters began building for them another house.

14. DW 2 continued in her testimony that when they started the foundation for the house they received a letter from the Chief cautioning them not to proceed with the construction. She indicated that they intended to build a house for her father, Athmani Musa and the father’s brother, Athmani Amani. DW 2 stated that the two pieces of land belonged to her family as they are the persons who have been in occupation.

15. On cross examination, DW 2 admitted that she had no document to prove ownership to the suit properties. However, she indicated that she had building plans. DW 2 admitted that the building plans did not identify the suit land nor their numbers. She also stated that she had no letters of administration to her father’s estate. DW 2 was adamant that she and her family members have been in peacefully occupation of the suit lands without interruption.

Submissions

16. The Plaintiff filed his submissions on 22nd July, 2014 while the Defendant filed theirs on 14. 8.2014 and highlighted in court on 12th March, 2018.

17. Mr. Maosa (may his soul RIP) learned Counsel for the Plaintiff in the written submmissions submitted that the Plaintiff has demonstrated that he is the beneficial owner of Plot No. 1513/26 by virtue of being the legal administrator of the estate of Mwana Binti Omari a.k.a Mwana Bint Omar (deceased). Counsel urged the court to note that the Plaintiff had produced a certificate of title in respect of the land and had also exhibited the certificate of confirmation of grant in relation to the estate of the deceased.

18. With regard to plot no. 1513/28, Mr. Maosa submitted that the Plaintiff bought the said parcel and a transfer was done dated 23rd October, 1978. Further, Counsel contended that the Plaintiff exhibited the certificate of ownership while the Defendant had not tendered any evidence to contradict the Plaintiff’s title documents.

19. The Plaintiff faulted the Defendant for relying on the plan approved on 25th October, 1965 by the District Health Inspectorate, Kilifi District. The Plaintiff submitted that there was nothing on the plan that revealed ownership details of the subject suit properties. The Plaintiff urged the court to find that he is the registered owners of the suit properties and to dismiss the counterclaim by the Defendant with costs.

20. The Defendant submitted that the burden of proof lay with the Plaintiff but he has failed to prove his case as he has not shown the process he followed in acquiring the titles for the suit lands as provided by the law. Further, the Defendant claimed that the titles produced by the Plaintiff were never authenticated and relied on Section 21 of the Land Titles Act (now repealed) which she argued required production of a search certificate.

21. According to the Defendant, the lands have always belonged to her and her family as they have been in actual and physical possession unlike the Plaintiff who in his testimony admitted that he has never occupied neither of the properties.

22. The Defendant submitted that the Defendant and her family had acquired prescriptive rights over the properties and cited the case of Wainaina v. Murai & others [1976] E.A 227. The Defendant opined that there was no reason to interfere with the existing status quo as the Plaintiff had failed to demonstrate why he allowed the Defendant and her relatives to stay on the lands for over 40 years.

Determination

23. From the pleadings filed, evidence adduced and submissions rendered, this Court frames the following questions as arising in the determination of this dispute:

i) Whether the plaintiff has proved that he has been in use & occupation of the said parcels of land since 1978 or thereabouts and or any date from 1978.

ii) When did the defendant or her agents get on the suit land and whether the entry amounted to trespass.

iii) Is the plaintiff entitled to the orders sought in the plaint?

OR

iv) Is it the defendant entitled to the orders prayed for in the counter-claim?

v) Who bears the costs of this suit?

24. PW 1 AHMED OMAR ALI said he was born in 1942. He knew both parties herein at the time of giving his evidence. In cross-examination, PW 1 said it is the parents of the defendant who were living on the suit properties while the plaintiff was living with him & their families. PW 2 testified that he left Takaungu in 1972 and went to live in Mamburui in Malindi. His evidence was not useful as to who lived on the suit plot for the period in question i.e. from 1978 onwards.

25. The plaintiff in his testimony said he lives and does business in Mombasa. He said he does not know the defendant’s family as they are not related. It is the plaintiff’s evidence that the defendant’s family were given a place to stay on humanitarian grounds by his grandparents. That the house on plot No 1513/26 had collapsed when he returned to Takaungu to fence the plots. From the evidence of the plaintiff, it appears it is his grandparents who lived on plot No 1513/26. He did not demonstrate to Court whether before or after the death of his grandparents if he ever lived here (either on plot No 1513/26 or 1513/28). I am therefore not persuaded that the plaintiff has proved the fact of physical occupation of the suit plots as pleaded in his amended plaint.

26. When did the defendant and or her agents get on to the land? In his statement filed in Court, the plaintiff does not say when the defendant or her relatives began residing on the suit lands. He stated thus, “the defendant & her family members have over the many years been allowed to occupy the said houses on humanitarian grounds as they looked for an alternative place. The said two (2) houses of which the defendant & her relatives were tenants stand on L. R No. 1513/26 & 1513/28 respectively.”

27. When did defendant’s occupation and or entry result into trespass? The plaintiff’s evidence shows the entry was by consent of his grandparents on what he called “humanitarian grounds.” The plaintiffs also aver that the defendant & her family have been tenants at will although no evidence of the tenancy was provided and that the defendant and her family were not required to pay any rent.

28. The question that begs answer is this; when did the occupation by the defendant and or her family change to now be of a trespasser in respect of the suit parcels? According to the plaintiff’s evidence it is in December 2004 when he learnt that the house on plot No 1513/26 had collapsed and the defendant was in the process of erecting a new structure without his consent. Secondly the plaintiff states that the house on plot No 1513/28 was in a dilapidated state. Consequently, he terminated the defendant’s tenancy. The initial plaint was filed on 27th January 2005. This is about a month after the plaintiff alleged to have terminated the defendant’s tenancy.

29. Without going into the terms of the “tenancy at will” which enabled the defendant to live on the land, the plaintiff has not produced the letter terminating the tenancy. He also did not specify the notice period was to run from what date in December 2004. In my view the chief’s letter dated 29. 12. 04 does not constitute notice. It was merely to act as an “injunction” pending the resolution of the dispute if at all. Further he said the house on plot No 1513/28 is still standing though in a dilapidated state. How does the state of a house constitute an act of trespass? The plaintiff’s complaint from the evidence adduced is that he was not happy with the new constructions that had been commenced.

30. Before December 2004, the plaintiff had not interrupted the occupation of the defendant of the suit properties. This corroborates the defendant’s evidence that they have lived on the suit parcels peacefully for over 40 years. It is my finding that the plaintiff’s claim for trespass is not supported by any evidence and has been made rather late in the day.

31. Is the plaintiff entitled to the orders sought in his plaint? My answer is no. I make this finding well aware of the fact that the plaintiff is having registration of the titles for the two parcels in his name. However he got himself registered while well aware of the presence of the defendants on both parcels. Registration perse does not ouster other rights available to parties by operation of the law. In this case, I am in agreement with the defendants’ averment that they have acquired the two titles through prescriptive rights. The registration of the plaintiff can only be deemed to be in trust for the defendant. The plaintiff’s claim is therefore worthy of dismissal and I hereby dismiss it forthwith.

32. In light of the foregoing, I find for the defendant as contained in prayer 1 & 2 (a) & (b) of the counter-claim dated 25. 9.2012. I also direct under prayer (3) of the counter claim that the plaintiff shall execute the transfer documents to facilitate titles of both plots No 1513/26 & 1513/28 to be registered in the name of the defendant or her nominee at the defendant’s cost. Each party to meet their costs of the suit.

Dated, signed & delivered at Mombasa this 25th July 2018

A. OMOLLO

JUDGE