[2019] KEELC 2589 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT BUNGOMA

ENVIRONMENT CASE NO. 72 OF 2012.

CHARLES WASIKE MAKOKHA.................................PLAINTIFF

VERSUS

STEPHEN LUMUNYASI......................................1ST DEFENDANT

MARTIN WANJALA............................................2ND DEFENDANT

FRANCIS WAFULA...............................................3RD DEFENDANT

JOHN WEKHOMBA.............................................4TH DEFENDANT

PIUS NALIANYA...................................................5TH DEFENDANT

VINCENT MAKOKHA.........................................6TH DEFENDANT

JOHN MURUNGA..................................................7TH DEFENDANT

PASTOR MURUNGA..............................................8TH DEFENDANT

ANTONY MAKARI....................................................9TH DEFENDANT

J U D G M E N T

CHARLES WASIKE MAKOKHA the plaintiff herein is acting in person and filed this suit on 29th July 2010 seeking Judgment against the defendants in the following terms:-

1. An order that the defendants un-conditionally vacate the land parcel NO. W.BUKUSU/E.SIBOTI/413 or in the alternative and without prejudice to the foregoing, they be evicted.

2. Mesne profits.

3. Cost of the suit.

4. Interest

The basis of the plaintiff’s claim is that he is the absolute registered proprietor of the land parcel NO. W. BUKUSU/E.SIBOTI/413 (herein the suit land) but on diverse dates between the year 1985 and 2009, the defendants took advantage of his absence and encroached thereon. They have evicted dwellings, structures and are also ploughing the suit land for crops. And despite demand and notice of intention to sue, the defendants have ignored and refused to vacate thus necessitating the filing of this suit.

The defendants filed a joint defence denying the plaintiff’s claim adding that the suit land was sub-divided on 6th November 1989 and the title closed.

The 1st defendant STEPHEN LUMANYASI pleaded that on 22nd August 1991 he purchased 2 1/3 acres from one DESTERIO WAMAYA NYOLA at a consideration of Kshs. 53,000/= and a further 1¾ from one TITUS WARABA WAMAYA at a consideration of Kshs. 56,000/= and took possession.

The 2nd defendant MARTINE WANJALA pleaded that in 1990, he bought 3 acres from one DESTERIO WAMAYA NYOLA at a consideration of Kshs. 35,000/= which he paid and obtained title being W. BUKUSU/E. SIBOTI/1556 and took possession.

The 3rd defendant FRANCIS WAFULA pleaded that on 24th February 1985 he purchased 5 acres from PETER WAFULA MAKOKHA and on 4th October, 1990, he purchased 2½ acres from DESTERIO WAMAYA NYOLA at a consideration of Kshs. 35,000/=. That he fully paid the purchase price and took possession.

The 4th defendant JOHN WEKHOMBA pleaded that on 7th March 1976 he purchased from one WEPUKHULU MUMALASI 6 acres at a consideration of Kshs. 3,750/= and in 1984, he purchased 1 acre from one PETER WAFULA and obtained his title on 6th November 1989.

The 5th defendant PIUS NALIANYA pleaded that on 30th March 1984, he purchased 2 acres from one WAMAYA NYOLA WAMBA at a consideration of Kshs. 13,062/= .

The 6th defendant VINCENT MAKOKHA pleaded that on 22nd August 2004, he purchased 5 acres from one TITUS WANJALA at a consideration of Kshs. 245,000/= and in 2006, he purchased a further ½ acre from one PETER WAFULA MAKOKHA at a consideration of Kshs. 24,500/=. He then obtained the title to his parcel which is W. BUKUSU/E.SIBOTI/1751 which he farms to-date. He denied having encroached onto the suit land.

The 7th defendant JOHN MURUNGA stated that on 20th April 2004, he purchased 1 ½ acres from one JOHN BARASA WEKHOMBA and has since obtained his title being W. BUKUSU/E. SIBOTI/1749 which he has taken possession.

The 9th defendant ANTONY MAKARI’s name appears in the statement of defence dated 25th August 2010 but there is no pleading made on his behalf. The same case applies to the 8th defendant PASTOR WAFULA. Their witness statements are expunged.

The plaintiff testified and closed his case before OMOLLO J on 25th July 2014. However, for various reasons which are clear from the record, the defence case was not heard. Part of the reason is that the Court had summoned the Land Registrar to produce the record of the suit land and the resultant sub – divisions thereof. It was not until 30th July 2018 that the defendants were able to testify after directions were given that the suit proceeds from where OMOLLO J had left.

For reasons that will become clear at the end of this Judgment, the failure by the 8thg and 9th defendants to file any defences is not really of any consequences.

The plaintiff testified before OMOLLO J on 25th June 2014 and his testimony was very brief. He told the Court that he is the registered proprietor of the suit land but while he was away in Uganda, the defendants took advantage of his absence and invaded it. He therefore sought their eviction therefrom.

The 1st, 2nd, 3rd, 4th, 6th and 7th defendants adopted as their evidence, their witness statements dated 10th December 2011 together with their list of documents dated 2nd April 2014 and filed on 3rd April 2014.

The 1st defendant denied having trespassed on the suit land adding that he bought land parcel NO. W. BUKUSU/E.SIBOTI/1450 from one TITUS WARABA WAMAYAand SILAS BARASA WAMAYA in 1991 and 1994 respectively.

The 2nd defendant testified that he bought his land parcel NO. W.BUKUSU/ E.SIBOTI/1556 from one WAMAYA NYOLA in 1993.

The 3rd defendant testified that in 1985, he bought parcel NO. W. BUKUSU/E.SIBOTI/1849 from one PETER WAFULA.

The 4th defendant testified that in 1976, he bought 6 acres of land now known as W. BUKUSU.E SIBOTI/1451 from one WEPUKHULU MUMALASI who is a brother to the plaintiff. That his parcel was curved out of the suit land and he has the title thereto. He added that even the plaintiff was aware about the transaction.

The 5th defendant is now deceased.

The 6th defendant testified that he bought land parcel NO. W. BUKUSU/E. SIBOTI/1449 from one TITUS WANJALA and has the title deed. He added that he did not know the plaintiff or the suit land.

The 7th defendant adopted as his evidence his witness statement dated 10th December 2011 in which he has stated that he bought ½ acre of land from one JAMES MANDA NABIE on 5th August 2008 at a consideration of Kshs. 33,000/= which he paid in two instalments. That he was in the process of obtaining the title when the plaintiff sued him. He denied having encroached onto the plaintiff’s land.

The 8th and 9th defendants were not named in the joint defence dated 25th August 2010 and although the 9th defendant ANTONY MAKARI testified as DW 10, his testimony is really of no consequence in as far as the claim against him is concerned.

The defendants also called as their witnesses JACKLINE NABANGALA NALIANYA (DW 9)and WAMAYA NYOLA WARABA (DW 8).

WAMAYA NYOLA WARABA similarly adopted as his evidence his statement dated 1st September 2015 in which he has stated that in 1976, he purchased the suit land measuring 13 acres from the plaintiff at a consideration of Kshs. 4,450/=. That he processed the title deed which was issued on 7th November 1989 and started living thereon. However, his health started deteriorating and he sold it to the following defendants:-

(a) 1st defendant – STEPHEN LUMANYASI – 4 ½ acres

(b) 2nd defendant – MARTIN WANJALA – 3 acres

(c) 4th defendant – JOHN WEKHOMBA – 3 acres

(d) 5th defendant – PIUS NALIANYA (deceased) – 2 acres

(e) JAMES NABIE – 1 ¼ acres

Thereafter, he relocated to MAYANJA KIBUKE where he lives. He added that the plaintiff is being stubborn and sold his share to the witness and no longer has any land in WEST SIBOTI and has since moved to TRANS – NZOIA.

JACKLINE NABANGALA NALIANYA the widow to the 5th defendant also relied on her witness statement dated 2nd May 2017 in which she states that the deceased bought 2 acres from WAMAYA NYOLA WARABA on 30th March 1984.

No submissions were filed by the parties at the end of the trial.

I have considered the evidence by all the parties as contained in their statements as well as the documents filed.

Although the plaintiff produced as part of his documentary evidence a copy of the title deed to the suit land issued on 30th April, 2010, that title was infact closed many years ago and the suit land no longer exists, perhaps only on paper. According to the evidence of WAMAYA NYOLA WARABA (DW 8), he bought the suit land measuring 13 acres from the plaintiff at a consideration of Kshs. 4,450/= way back in 1976 and was issued with a title deed on 7th November 1989. He then sold the suit land to the 1st, 2nd, 4th and 5th defendants as well as one JAMES NABIE before relocating to MAYANJA KIBUKE where he lives. This witness did not produce as his documentary evidence, any agreement between him and the plaintiff for the purchase of the suit land. It is clear however that WAMAYA NYOLA WARABA (DW 8) and the plaintiff were both holding titles to the suit land. According to the Green Card to the suit land, it was first registered in the names of one MAKOKHA (the second name is not very visible) on 6th February 1973. The registration in the names of the plaintiff was on 23rd February 1988. In the absence of any evidence as to how he purchased the suit land from the plaintiff, the only conclusion that this Court can arrive at is that WAMAYA NYOLA WARABA (DW 8) obtained the suit land fraudulently. Unfortunately however, the said WAMAYA NYOLA WARABA (DW 8) is not a party to this suit and therefore orders cannot be made against him. It is not clear why the plaintiff did not file a suit against him yet it must have been obvious to him as far back as 2012 when the defendants filed their statements herein that they had derived their respective titles from the said WAMAYA NYOLA WARABA (DW 8). For instance, in paragraph four of his statement dated 10th December 2011, the 2nd defendant states as follows:-

4: “On the 29/8/1993 I bought 3 acres from one WAMAYA NYOLA at a purchase of Kshs. 49,300/= for the 3 acres of land which I fully paid.”

A perusal of the documents herein show that the land parcels NO. W. BUKUSU/E. SIBOTI/1558, 1556, 1449, 1751, 1749, 1450, 1451, 1559, 1555, 1748, 1750, 1751 and 1752, which are all registered in the names of the defendants and others who are not parties herein, were resultant sub-divisions of the suit land. Indeed parcel NO. W. BUKUSU/E. SIBOTI/1449 which was registered in the names of one PETER WAFULA MAKOKHA was later sub – divided into parcels NO. W. BUKUSU/E. SIBOTI/1750, 1751 and 1752 which are all registered in the names of the said PETER WAFULA MAKOKHA who is not a party in this case. Having failed to enjoin WAMAYA NYOLA WARABA (DW 8) in these proceedings, it is difficult to challenge the titles of the defendants herein. It is also instructive to note that the plaintiff, as per his plaint dated 29th July 2010, is not even questioning the defendants’ titles. He seeks the eviction of the defendants from the suit land which no longer exists. With proper legal advice, the plaintiff would also have filed this suit against WAMAYA NYOLA WARABA (DW 8) pleading fraud in the manner in which he obtained title to the suit land and sold the resultant sub – divisions to the defendants herein. These are some of the unfortunate challenges that litigants acting in person face.

But that is not the only hurdle that the plaintiff has been un-able to surmount. The plaintiff’s suit has been caught up by Section 7 of the Limitation of Actions Actwhich provides that:-

7: “An action may not be brought by any person to recover land after the end of twelve years from the 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”

The plaintiff filed this suit on 29th July 2010. However, as is clear from the witness statements of the defendants herein, they purchased their various parcels of land which are resultant sub – divisions of the suit land as far back as 1976. For instance, the 1st defendant purchased his portion from one SILAS BARASA WAMAYA on 22nd August 1991, 2nd defendant purchased his portion from WAMAYA NYOLA on 29th August 1973, 3rd defendant purchased his two portions from PETER WAFULA MAKOKHA on 24th February 1985, 17th March 1991 and a third portion from WAMAYA NYOLA WARABA on 4th October 1990, 4th defendant purchased two portions the first being 6 acres from WEPUKHULU MUMALASI on 7th March 1976 and 1 acre from PETER WAFULA MAKOKHA in 1984. By the time the 6th defendant purchased land parcel NO. W. BUKUSU/E. SIBOTI/1449 in 2002, it had long been registered in the names of PETER WAFULA MAKOKHA. Most importantly however, it is clear from the title deed to the land parcel NO. W. BUKUSU/E. SIBOTI/1451 that it had been hived from the suit land as far back as 6th November 1989 which is some 21 years before this suit was filed. The plaintiff told the Court in his evidence in chief on 25th June 2014 that although the suit land originally belonged to his grandfather, the defendants invaded it when he was away and they are now in occupation. In his own plaint, he had pleaded at paragraph 4 that the invasion took place between 1985 and 2009.

From the evidence on record, it is obvious that this suit is statute barred. The suit land ceased to exist as far back as 1989. There is also no land known as W. BUKUSU/E. SIBOTI/413 which I can order the defendants to be evicted from.

This suit is dismissed with no orders as to costs.

Boaz N. Olao.

J U D G E

11th July 2019.

Judgment dated, delivered and signed in Open Court this 11th day of July 2019 at Bungoma.

Mr Kundu for defendants present

Plaintiff present in person

Defendants all present

Gladys – Court Assistant present

Right of Appeal explained.

Boaz N. Olao.

J U D G E

11th July 2019.