[2021] KEELC 2133 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 85 OF 2019

CHAI TUNE NYAMBU.................................................................PLAINTIFF

VERSUS

KITSAO TUNE

KAINGU TUNE.........................................................................DEFENDANTS

JUDGEMENT

Background

1. By the Plaint dated 8th October 2019 and filed herein on 9th October 2019, Chai Tune Nyambu [the Plaintiff] prays for judgement against the Defendants for:

a) An eviction order against the Defendants, their agents, servants and/or anybody acting on their behalf;

b) Costs; and

c) Any other relief this Honouarable court may deem just to grant.

2. Those prayers arise from the Plaintiff’s contention that at all times, material, he was staying in the said piece of land enjoying life peacefully until the Defendants trespassed on his 12 acre parcel of land and built structures, thereon. The Defendants have since registered a caution on the piece of land claiming on interest thereon. Despite demand made and notice of intention to sue the Defendants have refused to vacate the land and/or to remove the caution.

3. But in their written Statement of Defence and Counterclaim dated and filed herein on 11th November 2019, Kitsao Tune and Kaingu Tune [the 1st and 2nd Defendants respectively] deny that the Plaintiff is the owner of the suit property. On the contrary, the Defendants aver that the Plaintiff is their blood brother and that at all material times they have all been living on the suit property being land reference No. Kilifi/Ngerenyi/952 which measures approximately 12. 0 acres.

4. The Defendants further aver that there are many family members resident on the land and that the suit property has been in dispute since 1978 when their father Nyambu Tune passed away. The Defendants aver that the matter was the subject of Land Dispute Tribunal No. 18 of 1990 and that the same has overtime been handled by the area provincial Administration as well as the National Land Commission.

5. The Defendants further aver that the said parcel of land was only registered in the name of the Plaintiff as a custodian after consultation with family members and that he cannot be heard to claim sole proprietorship thereof.

6. By way of their Counterclaim, the Defendants pray that the Plaintiff’s suit be dismissed and that judgement be entered as follows:

a. That this Honourable Court [does] declare the portion of Land No. Kilifi/Ngerenyi/952 measuring approximately 12. 0 acres or thereabout situated at Tezo be sub-divided between the Plaintiff and the Defendants who are his brothers as all are beneficial heirs of the subject property; and

b. That the court [does] issue an order restraining the Plaintiff/Applicant, his agent and servants from disposing, selling, leasing, transferring, alienating, charging and/or in any other manner whatsoever dealing with the said parcel of land No. Kilifi/Ngerenyi/952

The Plaintiff’s Case

7. In support of his case the Plaintiff called a total of five [5] witnesses at the trial.

8. PW1- Chai Tune Nyambu is the Plaintiff and a resident of Lagooni, Tezo. PW1 told the court that the Defendants are his step brothers with his mother being the eldest of their father’s wives. PW1 testified that the Defendants are staying on his land. The land previously belonged to their clan but was given to PW1 when his mother died.

9. PW1 further testified that he was issued with a title deed in his name for the land - Kilifi/Ngerenyi/952 on 28th August 2006. He told the court he bought the land from several individuals and that the land did not belong to their father. He further told the court that the Defendants have since refused to vacate the land claiming to have an interest thereon.

10. On cross-examination, PW1 told the court he had bought the suit property from five people; namely, Shee Bahati, One Dida, Katana Gari, Sidi Ngowa and Karisa Katana Mbeha. PW1 however conceded that he had no documents to show he had bought the land.

11. PW2 – Kahindi Shehe is a neighbour of the Plaintiff in Tezo. He told the court the suit property belongs to the Plaintiff who has been his neighbor since 1983. PW2 told the court the Plaintiff had a title in his name and that the land did not belong to the father to the parties herein as claimed by the Defendants.

12. PW3 – Garama Baya Yaa is also a neighbor to the Plaintiff. He told the court his father and the Plaintiff were among the first people to get land registered in their names in the area and that he only saw the Plaintiff’s brothers much later. PW3 reiterated that the land did not belong to the father of the Plaintiff and the Defendants

13. PW4- Kasena Katana Ngari is a farmer in Mkodoroni and a neighbor to the disputants herein. He similarly reiterated that plot no. 952 belongs to the Plaintiff even though he conceded on cross –examination that the had not seen any documents showing how the Plaintiff acquired the same.

14. PW5 – Mwaka Charo Kasukari was another neighbor of the Plaintiff. She told the court the land belonged to the Plaintiff.

The Defence Case

15. The two Defendants equally called five [5] witnesses in support of their case at the trial.

16. DW1- Kitsao Tune is the 1st Defendant and a resident of Tezo. He told the court that they are not trespassers on the suit property as stated by the Plaintiff. On the contrary, DW1 told the court they have lived on the same property with the Plaintiff since 1965. At some point in time, the Plaintiff left the Defendants on the suit property and went to a place called Majajani. When the Plaintiff came back a few years later, he threatened the Defendants and their families with eviction from the property.

17. DW1 further told the court that their family members decided that the Plaintiff who is their elder brother would be the administrator of their father’s estate and the title was transferred to his name for further sub-division which was never done.

18. On cross – examination, DW1 testified that their father bought the land in three portions from different people. He however told the court it is the Plaintiff who brought a surveyor to the land as the Defendants had no money.

19. DW2- Kaingu Tune is the 2nd Defendant and an elder brother to the 1st Defendant. DW2 repeated DW1’s position that the land in question was bought by their father in three portions in the year 1965. He told the court the Plaintiff left the land in 1976 and that he has nothing on the land.

20. On Cross - examination, DW2 told the court his mother was a witness when their father bought the land. He denied the Plaintiff’s position that their father had only bought goats.

21. DW3- Athman Tawfik Matano, is a retired Chief of Township location, Kilifi. He recalls that the dispute herein went before him in 1999. The complainants before him then were Kitsao Tune, Kahindi , Kwekwe Tune, Nyamu and Chengo Tune. They had a dispute with their elder brother who is the Plaintiff herein.

22. DW3 told the court he heard the dispute and visited the site at Mzongoloni in Tezo. He then listened to witnesses and was shown the boundaries of the suit property. DW3 noted that the land was fully developed with homes thereon. The Plaintiff however had no house on the land. DW3 concluded that the land belonged to the father of the disputants who was by then deceased. He asked the parties to agree amongst themselves and that each one of them be given a piece.

23. On cross- examination, DW3 told the court he wrote a decision later in his office after visiting the site on 24th June 1999. Each of the brothers were to get a piece of the property. DW3 further told the court that he was not aware that the Defendants later went to contest his decision at the District Officer’s [DO’s] office.

24. DW4 – Douglas Kitsao Mwamsha is a farmer in Tezo and a neighbour of the disputants. DW4 told the court that his father Kitsao Mwakamsha sold the land to the father of the disputants. He told the court the land sold was 17 acres although he could not recall the year it was sold. He further told the court he was not there when the sale happened but came to hear of it.

25. DW5- Sidi Karisa Katana is a resident of Tezo and a neighbor of the disputants. He told the court the suit property neighbours her own parcel of land and that it belonged to the late Tune Nyambu who was the father of the disputants.

Analysis and Determination

26. I have perused and considered the pleadings herein filed by the parties in person, the testimonies of their witnesses as well as the evidence adduced at the trial. The parties did not file any closing submissions in support of their respective cases.

27. The Plaintiff herein Chai Tune Nyambu prays for an order of eviction against the two Defendants – Kitsao Tune and Kaingu Tune. The basis for that prayer can be found at paragraph 3 to 6 of the Plaint in which the Plaintiff asserts as follows:

“3. At all material times to this suit the Plaintiff had been staying in the said piece of land enjoying peacefully life until when the Respondents plus the agents trespassed the 12 acre shamba and built structures.

4. That the Respondents early in the year approach[ed] the land registry Kilifi and place[d] a caution on the said piece of land claiming interest.

5. That after the Respondents placed the caution I approached the Honourable Court for an order of eviction.

6. Despite demand and notice of intention to sue having been issued the Defendants have been adamant”.

28. As can be seen from his pleadings, the Plaintiff does not state when the Defendants trespassed on the parcel of land which he does not clearly identify. It is however apparent that this suit was precipitated by the alleged act of trespass and the fact that the Defendants proceeded to register a caution on the land claiming an interest thereon.

29. From a perusal of the Defendants’ pleadings, the subject property is identified as land reference No. Kilifi/Ngerenyi/952 measuring some 12 acres. It was also apparent from a perusal of the material placed before me including the testimony of the plaintiff himself that the parties herein are blood relatives. While the Plaintiff is the first born son of the late Tune Nyambu by his first wife, the 1st and 2nd Defendants were the sons of the 2nd wife to the late Tune Nyambu.

30. The reason the Plaintiff does not explain when the trespass occurred is certainly because the parties herein have been on the Suitland for a long period of time. In his undated statement filed in court on 17th January 2020, the Plaintiff avers in the relevant portions as follows:

“ In the year 1964, I lost my biological mother. After the burial ceremony, I was called by my elder sister’s husband by name Shehe Bahari. When I arrived at his place he gave me a piece of advice that I should start farming. This will help me get money and that will transform my life and also enable me plan for my mother’s remembrance.

That when I got the advice, I decided to inform my father Tune Nyambu Chiriba about what I was told by my sister’s husband and he was very happy. In the day, we parted to the plot which I was shown by my sister’s husband. The following day, my father and I started cultivating the piece of land which took us three [3] [sic] to finish cultivating the piece of land.

That, my father went back home and inform my step-mother, who was left with us after my mother died, whom they came together. When my father and step-mother were back, a well-known old man by the name Dida came and asked whether we were interested to get another piece of land. I gave him a positive response as his question is concerned and he called us to follow him. He showed [us] his piece of land [and] we continued with [the] process of cultivating the land.”

31. Arising from the foregoing, it was apparent that part of the piece of land claimed by the Plaintiff as his own was initially identified and cultivated by both the Plaintiff, his father the late Tune Nyambu Chiriba and his step-mother who is the mother to the two Defendants herein.

32. While the Plaintiff claims to have purchased the second piece of land from Mzee Dida and other pieces from other persons, it was not clear what portion of land he initially acquired jointly with his father and step-mother. The plaintiff neither produced any sale agreement or witnesses who saw him purchase the other parcels of land and it was unclear how much land if at all he had purchased to make up the 12 acres now described as LR No. Kilifi/Ngerenyi/952.

33. Given that his half-brothers disputed that he had purchased the land and that the same did not belong to their father, it was incumbent upon the Plaintiff to discharge the burden of proof by tabling conclusive evidence of such purchase.

34. While he claimed that his half-brothers had recently invaded the Suitland, it was apparent that ever since the acquisition of the land in the 1960’s their family lived on the land. Indeed, according to the Defendants, before their father’s death in 1978, the Plaintiff had around the year 1976 moved to a placed called Majajani where he settled. That fact was corroborated by a report by the former area chief Athman Tawfik Matano [DW3] before whom the dispute was taken in 1999 when the Plaintiff first threatened to evict the Defendants from the suit property. In the report dated 24th June 1999 prepared after a site visit to the Suitland, DW1 found as a fact that the Plaintiff unlike his seven [7] other brothers had no house on the suit property.

35. It was interesting that despite knowledge of the presence of his brothers on the land for so many years, he proceeded in unclear circumstances to have himself registered as the proprietor of the suit property on 28th August 2006. Having failed to remove his brother from the land, the Plaintiff brought this suit accusing them of trespass.

36. This court is however unprepared to buy his story. From the material placed before me, it is evident that Defendants and their other siblings started living on the land long before their father passed away in 1978. It was equally evident that as early as the year 1999, the Plaintiff was aware of the presence of his brothers and their families on the suit property.

37. In this respect Section 7 of the Limitation of Actions Act provides as follows:

“Any action may not be brought by any person to recover land after the end of twelve years from date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.”

38. In the matter before me, this suit was filed in the year 2019, that is at least 20 years since the first dispute between the brothers in regard to the suit property first arose. As was stated by the Court of Appeal in Gathoni –vs- Kenya Co-operative Creameries Ltd [1982] KLR 104.

“.... The law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the Applicant who whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done”

39. The object of any statute of limitation is certainly to prevent a plaintiff from prosecuting stale claims and to protect a Defendant from being disturbed after a long lapse of time after he has lost evidence that can be used for his defence. The effect of such a statute is to remove remedies irrespective of the merits of the particular case [see Mehta –vs- Shah [1965] EA 321].

40. In the premises herein, I am persuaded that there is no basis for the Plaintiff’s claim as the same not only lacks merit but has been brought too late in the day. On the contrary, I find substantive merit in the Defendant’s Counterclaim.

41. Accordingly I hereby dismiss the Plaintiff’s suit and enter judgment for the Defendants as prayed in their Counterclaim.

42. The Defendants shall have the costs of the Plaintiff’s suit as well as that of their Counterclaim.

43. It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF AUGUST, 2021.

J.O. OLOLA

JUDGE