[2015] KEELC 671 (KLR)

REPUBLIC OF KENYA

IN THE LAND AND ENVIRONMENT COURT AT KITALE

CONSTITUTIONAL PETITION NO. 15 OF 2013

THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006 ARTICLE 262 (19) OF THE TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

IN THE MATTER OF ARTICLES 21(1), 22(3)c, 23(1&3), 24(1) d, e 25(c), 27(1&2), 28, 29(a), 39, 40(2) a&b, 47 OF THE CONSTITUTION.

BETWEEN

CLARE NASIMIYU WANJALA :::::::::::::::::::::::::::::::::::: PETITIONER

VERSUS

MOSES WAKWOMA KAKOI ::::::::::::::::::::::::::::::: 1ST RESPONDENT

DANSON SITATI SIMIYU ::::::::::::::::::::::::::::::: 2ND RESPONDENT

THE LAND REGISTRAR TRANS-NZOIA COUNTY :::: 3RD RESPONDENT

THE ATTORNEY GENERAL ::::::::::::::::::::::::::::: 4TH RESPONDENT

J U D G E M E N T

INTRODUCTION

The Petitioner filed this petition seeking the following reliefs;-

That the Honourable court be pleased to grant an order to the petitioner herein canceling land title, Elgon investment Estate Limited, Milele Plot No. 664, measuring approximately 0. 089 hactares registered in the name of the second respondent herein and the same reverts back and be registered in the name of the petitioner herein Clare Nasimiyu Wanjala.

That the Honourable court be pleased to grant an order of eviction to the to the petitioner herein evicting the first and second respondents, their agents, servants, attorneys or any other person whatsoever acting for the respondents from the suit land and the same be permanently restrained from the aforesaid land.

That the Honourable court be pleased to grant mesne profits and damages for the destruction of properties together with interest thereof.

That cost be provided for in favour of the petitioner herein.

All the respondents were served with the petition but none filed replying affidavit or grounds opposing the petition. It is only the first respondent who appeared during the hearing of the petition and was allowed to be heard.

PETITIONER'S CASE

The Petitioner testified that on 8/2/1998 she entered into an exchange agreement with the first respondent. The first respondent was owner of LR Bungoma/Tongaren 552 and the petitioner was owner of Elgon Investment Estate Limited Milele Plot 664. The petitioner was to take 2 acres of the first respondent's plot at Bungoma whereas the first respondent was to take two acres of the petitioner's Plot No. 664 at Matunda, Kiminini area. The petitioner proceeded to Bungoma and took possession of 2 acres and the first respondent took possession of the plot at Matunda Kiminini.

The petitioner settled on the two acres for 10 years after which the first respondent started claiming that the plot which he had taken up was not two acres as agreed but that it was 1 ½ acres. The firstrespondent then demanded to come back to his Plot at Bungoma. The petitioner testified that the first respondent came and evicted her from the Bungoma plot. He destroyed semi permanent houses which she had put up. The petitioner testified that she went and filed a claim against the first respondent at Tongaren Land Disputes Tribunal which ruled that she moves back to her plot No. 644 at Matunda Kiminini. When she went to the land at Kiminini, she found that the first respondent had sold it to the second respondent who was in occupation of the same. She had nowhere to go and ended up staying as a squatter.

FIRST RESPONDENT'S CASE

The first respondent testified that he indeed exchanged his land with the petitioner. He brought surveyors to his Bungoma plot who excised 2 acres for the petitioner. He also took possession of the petitioner's plot at Matunda Kiminini. When he brought surveyors to the plot, the plot was surveyed and it turned out to be 1 ½ acres. He then went and filed a case against the petitioner at Tongaren Land Disputes Tribunal which ruled in his favour. The petitioner was given notice to quit the Bungoma Land. The first respondent, testified that he started the case at Tongaren because the petitioner was involved in litigation with the persons who sold her the Matunda Kiminini land.

ANALYSIS OF EVIDENCE

I have gone through the petitioner's evidence as well as the evidence of the first respondent and the petitioner's documents in support of the petition. There is no doubt that the petitioner and the first respondents exchanged their respective plots. The petitioner contends that it is the first respondent who caused all the problems because he stared claiming that the plot he was given was 1 ½ acres instead of the two acres agreed, The issues which emerge for determination are firstly whether the Matunda Kiminini plot was 2 acres or 1 ½ acres. Secondly did the first respondent sell plot No. 664 to the 2nd respondent? Thirdly is the petitioner entitled to any compensation in form of mesne profits or for building?

The plot which initially belonged to the petitioner is now registered in the name of the second respondent. According to a copy of green card attached to the petition, the plot is Kiminini/Matunda/664 which is 0. 0809 hactares. This translates to about 0. 200 of an acre. The petitioner had claimed in her evidence that she transferred the land to the first respondent who in turn transferred it to the second respondent. Her evidence is not supported by the copy of green card attached to her petition. The copy of green card shows that the second respondent was the first person to be registered as owner of plot 664. The registration was done on 27/7/2007. It is therefore not possible that it is the first respondent who transferred it to the second respondent. This notwithstanding, it is clear that the second respondent had himself registered as owner of plot 664 when the first respondent was in possession of the same. Though the first respondent denied any knowledge of the second respondent, this cannot be possible because the first respondent moved out of the land in 2010 after the claim which he had filed against the petitioner was concluded and the petitioner ordered to go back to her land at Matunda Kiminini. The first respondent is aware about what happened to the plot. He must have been the one behind the sale of part of the petitioner's land to the second respondent. How come that the second respondent did not seek possession of a plot whose title he had acquired in 2007 until after the first respondent obtained orders evicting the petitioner from first respondent's plot at Bungoma? This was a calculated scheme meant to deprive the petitioner of her land which she had exchanged as well as the one which lawfully belonged to her which is now in the hands of a third party, the second respondent herein.

The petitioner has a right to acquire and own property. She had acquired her property being Plot 664 at Matunda Kiminini . The first and second respondent s have arbitrarily deprived her of that right to own property by secretly having the same registered in the name of the second respondent. I find that the petitioner's constitutional rights as stipulated in Article 40 of the constitution have been violated.

DETERMINATION

It is not clear how the second respondent came to be registered as owner of LR. NO. Matunda/Kiminini/664 which is less than what the petitioner claims to have exchanged. It is however clear that this registration was done through support of the first respondent. The second respondent did not come out to defend his illegally acquired title. I therefore issue an order cancelling title in respect of LR Matunda/Kiminini/664 which is in the names of Danson Sitati Simiyu and the same be registered in the name of the petitioner Clare Nasimiyu Wanjala.

The petitioner claims mesne profits. There is no basis upon which this prayer can be given. The petitioner was enjoying the Bungoma land until 2010 when she was ordered out by order of the court. The first respondent was also enjoying the Matunda land until that same period. There is no basis therefore of ordering mesne profits.

The petitioner had submitted in her previous submissions that she had already settled on her original land only that the title was in the name of the second respondent. She cannot therefore seek any mesne profits from the second respondent. However should it turn out that the second respondent or first respondent or anyone claiming under them is in possession of the said land, an eviction order is hereby issued to remove them from the said land.

There is no evidence that the first respondent demolished the houses which the petitioner had put up. In any case, it is the court which gave either party to return to their respective plots and sufficient notice was given for any movement. The petitioner lost her houses and this was the case with the first respondent. There is therefore no basis upon which I can make any compensation for the destroyed house. The petitioner shall have costs of this petition to be paid by the first and second respondents.

Dated, signed and delivered at Kitale on this 4th day of February, 2015.

E. OBAGA

JUDGE

In the presence of Petitioner and first Respondent. Court Clerk Kassachoon.

E. OBAGA

JUDGE

4/2/2015