[2004] KEHC 2059 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL CASE NO. 9 OF 1995

DANIEL ONYANGO OMUYA ……………………..........…………..PLAINTIFF

Versus

SAMSON WANDOLO ODERO …………………………………DEFENDANT

JUDGMENT

In this case Daniel Onyango Omuya, the plaintiff seeks the following reliefs:

(a) A declaration that the extra portion of land (outside the 20 by 70 steps sold to the defendant by the plaintiff) be found and declared to be the plaintiff’s property, held in trust by the defendant for the plaintiff to the plaintiff’s order;

(b) An order that the said extra portion be removed from the defendant’s Land parcel no. South Sakwa/Barkowino/2570 and be awarded to the Plaintiff and that appropriate subdivision and transfer be signed by the Defendant and/or the Deputy Registrar in favour of the plaintiff; (

c ) Mesne profits and

In the alternative and without prejudice to the foregoing –

(d) Payment of the land at the current market price;

(e) General damages, and

(f) Costs and incidentals to the suit.

In his plaint the plaintiff averred that he was the sole proprietor of parcel of land no. South Sakwa/Barkowino/2741 and that following some agreements he entered with Alex Mayanga, Bob Jalang’o and the defendant he excised and cut off portions of the said parcel no. South Sakwa/Barkowino/2741 and sold those portions to the three. The plaintiff further averred that the portion he sold to the defendant was approximately 20 by 70 steps in size , but in complete disregard to the agreed size of the land sold to him the defendant encroached the plaintiff’s remaining portion of land and added a much bigger portion of the plaintiff’s to his own land to his own and thereafter without the plaintiff’s knowledge and consent secretly proceeded to acquire it, register in his name and obtained land certificate as no. Siaya/Barkowino/2570. The plaintiff averred that by the said defendant’s wrongful action he has suffered loss and damage. The plaintiff claimed that after the sale of the portions from parcel no. 2741 aforesaid the plaintiff’s parcel remained as no. South Sakwa/Barkowino/3605 but less in size by portion wrongfully annexed by the defendant. On 4th October 2002 the plaintiff filed an amended plaint.

Samson Wandolo Adera the defendant filed his written statement of defence in which he denied that he bought a portion of the plaintiff’s parcel no. South Sakwa/Barkowino/2741 and that he was a total stranger to the averments in paragraphs 4, 5 and 6 of the amended plaint. The defendant further denied the plaintiff’s claim that he secretly and without consent of the plaintiff he acquired land certificate no. Siaya/Barkowino/2570 and he added that he does not hold title to it in trust for the plaintiff and that there was therefore nothing for him to rectify. The defendant added that the parcel he bought and continues to retain is south Sakwa/Barkowni/2570.

In his testimony the plaintiff who gave evidence as Pw1 said that he owned parcel no. South Sakwa/Barkowino/495 which he later on sub-divided into three portions and that he sold the resultant plots to Alex Kaamba, Bob Jalang’o and the defendant and that he remained with a portion of it which was registered as South Sakwa/Barkowino/3605 and a land certificate was issued to him. He put in as exhibits a copy of title deed and a green card. The plaintiff claimed that the defendant later on entered onto his portion of land and put up a timber structure on it and that when he asked him why he had encroached onto his portion of land the defendant caused him to be arrested and charged at Siaya RM Court but he was eventually acquitted. It was the plaintiff’s further claim that the defendant is still on his portion of land whose value is kshs.600,000/=. According to the plaintiff plot no. South Sakwa/Barkowino/2741 was created when plot South Sakwa/Barkowino/495 was subdivided. The plaintiff sought an order to direct the defendant to give vacant possession of his plot. He claimed that he did not remember the date he sold his portion of land to the defendant and that although they had reduced the agreement into writing he had lost his copy. The plaintiff added that the plot no. South Sakwa/Barkowino/3605 was created when plot no. South Sakwa/Barkowino/2741 was sub divided. He added that he was arrested on 6th October 19986 and was taken to Siaya. He admitted that he has seen the Kenya Gazette dated 24/8/95 following in which his parcel of land no. South Sakwa/Barkowino/3605 was deregistered but he was aware of it when it was published. The plaintiff stated that after selling his parcel of land to the defendant he left for Nairobi and that the defendant alone processed the subdivision of his land and effected the transfer of the portion of it to his name. The plaintiff denied that he attended a meeting of land control where the said sale was given consent. He added that the defendant is occupying the whole of his plot No. South Sakwa/Barkowino/3605.

Peter Wanja, Pw2, who works at the District Survey office Siaya told the court that he knows the parcel of land no. South Sakwa/Barkowino/495 and that its records show that it was subdivided in September 1986 into two parcels which were registered as South Sakwa/Barkowino/2741 and 2742. The witness claimed that later on parcel no. South Sakw/Barkowino/2741 was further subdivided into three portions which were registered as South Sakwa/Barkowino/3605, 3606 and 3607. Pw2 added that he does not have copies of consent of the Land Control Board and the mutation forms for the subdivisions. He added that mutation is commenced by the owner of a parcel of land when he applies to the land control board for an approval of subdivision of his land and if the board issues a consent to him then mutation form is prepared by a surveyor and the owner signs it and that will be followed by survey. Pw2 claimed that parcel no. South Sakwa/Barkowino/2570 is adjacent to parcel no.2741, but he claimed that he does not know the origin of it. Pw2 added that the maps under which subdivision of parcel no. 2741 was carried out in 1994 and in which parcels nos. South Sakwa/Barkowino/366605, 3606 and 3607 were created do not exist. He added that survey of subdivisions of parcel nos. South Sakwa/Barkowino/3605, 3606 and 3607 was carried out by one Nyadimo Opondo but he does not know who prepared mutation form for parcel no. South Sakwa/Barkowino/495. Pw2 said that the sizes of the said plots were as follows:-

2742 is 0. 12 ha.

3605 is 0. 08 ha.

3606 is 0. 04 ha.

3607 is 0. 04 ha., and

495 is 0. 28 ha.

The witness admitted that the plots nos.3605, 3606 an 3607 do not appear on the map and that he has not visited the plots himself. He admitted that he has seen a sketch plan by the Provincial Surveyor but it has no signature on it and that though the plaintiff denies to have signed the mutation form there is a signature on it.

Nelson Okola Otieno Pw3 is the Assistant Land Registrar attached to Siaya Land registry. In his evidence this witness claimed that he knows plot no. South Sakwa/Barkowino/495 which had undergone a number of subdivisions. He claimed that out of the plot no. 495 two other plots nos. 2741 and 2742 were created and that subsequently plot no. 2741 was also subdivided into 3 portions and the resultant plots of it were registered as nos. 3605, 3606 and 3607. Pw3 added that the plaintiff owns plot no. 3605 while the other two were transferred to Alex Oyao Manyamba. This witness claimed that plot no. 2570 is registered in the names of Samson Wandolo Adera the defendant. He said that he does not have copies of consents of Land Control Board for all the subdivisions of plot no. 495 and its resultant plots. The witness said that he was not aware of any mutation form signed by the defendant. According to Pw3 the Land Registrar is vested with power to deal with all boundary disputes, which include ascertaining the correct boundaries and fixing them. The witness admitted that exercises of such powers do not result into some plots disappearing from existence altogether. He further admitted that plot no. 3605 no longer existed as it was de-registered. Pw3 admitted that they did not have a meeting of the owners of the plots whose boundary was in dispute before a decision to cancel the registration was made but they wrote a letter to the plaintiff. According to Pw3 the District Surveyor informed the Land Registrar that the plot does not exist on the ground and that that precipitated the issue of the Kenya Gazette Notice, and to the deregistration. The witness added that before the de-registration was made the plaintiff as the proprietor of the plot had been given 30 days but he did not go to the Land office within the period. The witness claimed that Mr. Joseph Kweyu Adongo the District Land Registrar Siaya was sick and bed-ridden. When he was further cross-examined he admitted that he did not have anything to show that the plaintiff received a letter of 6th June 1995 and that he did not have a copy of the proceedings relating to the dispute between the plaintiff and the defendant over the said plot. The witness could not give reasons for deregistration of the plaintiff’s plot no. South Sakwa/Barkowino/3605.

In his testimony Samson Wandolo Adera (Dw1) the defendant said that the plot no. South Sakwa/Barkowino/2741 belongs to Alex Oyawo Mayamba and that it was created from the subdivision of plot no. South Sakwa/Barkowino/495 which used to belong to Agri Mware who owned it between 1969 and 1974 before he sold it. Dw1 said that parcels nos. South Sakwa/Barkowino/2741 an 2742 were created when parcel no. South Sakwa/Barkowino/495 subdivided into two portions. It was Dw1’s evidence that plot no.2742 belongs to Bob Jalango Nyandoge while he owns plot no. 2570 which was sold to him in 1970 by the plaintiff. The defendant added that plot no.2741 was further subdivided into three portions and that the plaintiff did not retain any portion of it. He denied having used his connections with the Land Registry to cancel the plaintiff’s remaining portion of land. He also denied that he took more land than was sold him by the plaintiff. He claimed that he did not have a copy of the sale agreement with the plaintiff but he asserted that he bought more than one acre of land.

Agoi Mware Dw2 told the court that the plot no. 2741 used to belong to him and that he became the registered proprietor of it in 1957, but that in 1970 he gave it to Mayamba who has held it until now. Dw2 denied that the plaintiff sold the plot to him. Dw2 appears to have said that at one time he bought a plot from the plaintiff though he did not remember the number of it. This witness admitted that he does not know when land adjudication was introduced to Barkowino area and whether the plaintiff was the original owner of the said plot. All he could remember is that he bought the plot from the plaintiff and later on the sold it to Mayamba.

Isaiah Mboya Aduda Dw3 in his testimony said that in 1995 he was based at Siaya District Survey office and that during that year he received complaint from the defendant which were to the effect that the survey carried out in respect to subdivisions of parcels nos. 2741 into 3 portions had encroached onto his plot no. 2570. Dw3 claimed that he sent the late Omoro to go to the site to check whether the complaints were justified and later on he wrote to the Land Registrar on 27/2/97 informing of the result. Dw3 added that he signed mutation form brought to him by Omoro The witness admitted that the mutation form indicates the owner of plot no. 2741 as the plaintiff and that plot no.2570 was original registration while the others were not . DW3 admitted that Exhibit D4 shows plots nos 2741, 2570 and 2742 but it does not mention that the plaintiff or the defendant as the owner of any of the plots. He denied a suggestion that he illegally gave the defendant the plaintiff’s plot.

Joseph Kwenya Odongo DW4 said that he used to be the Land Registrar for both Siaya and Bondo Districts before he retired on 30th June 2002 having been posted at the station on 5th July 1989. DW4 said that he knows plot no. South Sakwa/Barkowino/2570 owned by the defendant and plots nos 2741 and 2742 which were created when plot no. 495 was subdivided into 2 portions. DW4 claimed that in 1986 plot no 2741 was subdivided in 3 portions which were numbered as 3605, 3606 and 3607. DW4 claimed that survey of the plots was carried out in 1994 and that in 1995, the defendant complained that his plot no. 2570 had been encroached on by the subdivisions of plot no. 2741 and the late Omoro was sent to go to the site and verify on the ground whether the complaints were justified. DW4 claimed that on receipt of the report, he wrote to the Provincial Surveyor on 27th February 1997 to show him that there was a problem relating to plots nos. 2570 and 3605. According to this witness plot no 3605 does not exist on the ground having ceased to exist from 25th August 1995 when it was its de-registration was gazetted. While DW4 admitted that he did not have a file of the Siaya Land Office on the matter he emphasized that he had sent the late Omoro of the District Survey Office to verify the complaints of the defendant relating to the alleged encroachment on his plot. DW4 stated that the owner of a plot of land must sign mutation form before it can be acted upon unless the subdivision carried out are made as a result of the Court’s order. However he admitted that the mutation form Exhibit P4 was not signed by the plaintiff. It was also DW4’s evidence that plot no. 2570 borders plot no 3605 and that there is a doted line between them. As to his letter dated 27. 2.97 DW4 admitted that he did not mention plot no. 3605 and that after the Kenya Gazette notice, no. 5038 of 22. 8.95 he cancelled the plaintiff’s title of parcel no. 3605 which he had issued earlier on. He claimed that before cancellation, he wrote to the plaintiff through the Chief but he has no proof that the letters were received by him.

Maurice Osewe Aringo, DW5, is a Chief Bondo Town in which the suit plots are situated. In his testimony, he claimed that he lives on plot no. 2570 as a tenant of the defendant and that he also knows the plaintiff. Although he claimed to have lived on the said plot for 15 years, he denied any knowledge of subdivisions of plot no. 2741.

It is evident to me from the evidence adduced in this case that until 25th August, 1995, the plaintiff was the registered proprietor of parcel of land no. South Sakwa/Barkowino/3605 comprising 0. 08 ha, and that he had been issued with a title to it dated 2nd August 1994 by the Land Registrar Siaya. It is also on record that during 1995 the defendant complained to the Land Registrar, Siaya that his parcel of Land no. South Sakwa/Barkowino/2570 had been encroached on when the survey of the subdivisions to plot no. South Sakwa/Barkowino/2741 was carried out. DW4 who was at the material time the Land Registrar in charge of Busia Land Registry said that after the receipt of the said complaints he agreed with the Siaya District Surveyor that they would send representatives to the site to verify the said complaints. According to DW4 the duties of his representative were limited to witnessing what the Surveyor was to do on the ground. DW4 said that he sent one Omoro who is now deceased and that the District Surveyor sent one Aggrey Kaitha who is also said to be deceased. It appears that the report of the representative of the District Surveyor who had gone to the site was that plot no. South Sakwa/Barkowino/3605 did not exist on the ground but there were no documents in support of this claim exhibited. Thereafter the Land Registrar wrote to the plaintiff through the local Chief giving him 30 days to surrender his title but when he did not do so, the Land Registrar issued a Kenya Gazette notice no. 5038 of 25. 8.95 indicating that on expiry of 30 days from the date provided that no objection was received the said title would be cancelled, without production of the said title deed to him.

In furtherance to the said cancellation on 27/2/97 the District Surveyor wrote to the Land Registrar submitting a mutation form to give effect to the exercise. On 27. 2.98 the Land Registrar wrote to the Provincial Surveyor, Nyanza, enclosing the said mutation form duly registered showing the ground position of plots nos South Sakwa/Barkowino/2570, 2741 and 2742 and sought an amendment of P.I.D no. 12.

It appears to me that the complaint which was made by the defendant to the Land Registrar was essentially a boundary dispute between the defendant’s parcel no 2570 and the plaintiff’s plot no. 3605. As the defendant’s complaint was that the plaintiff’s plot had encroached on his plot it was incumbent upon the Land Registrar to invite the parties to the site and with the assistance of the District Surveyor he would have determined the correct boundary between the two plots. As indicated by witnesses in this case the Land Registrar did not visit the site himself so as to determine the correct boundary and to satisfy himself whether or not the complaints were correct. Consequently the plaintiff was not invited to the site when the defendants complaints were checked by the representative of the District Surveyor and yet his plot was directly affected. It is clear that he was kept in the dark until his title was cancelled. It is also odd that there are no documents exhibited which had convinced the Land Registrar that the plaintiff’s plot for which he had issued title a year earlier on had since ceased to exist. By his Gazette Notice of 25. 9.95, the Land Registrar had claimed that he had visited the suit land on 2nd March 1995 but when he was in Court he admitted that he did do so. It is also noted from the two letters of 27. 2.97 and 27. 2.98 that a mutation form was prepared and registered and a map was sought to be amended. What appears odd is that in the mutation form of 1986 to the shape of plot no. 2570 was triangular, but this was changed shape so that it became triangular. (See pages 2 and 3 of mutation form dated 25th and 26th February 1998). It is also not clear how plot no. 2570 came to be between plots no. 2741 and 2742 when the these two were created when plot no. 495 was subdivided into two portions. By a copy of mutation registered on 14. 10. 86 plot no. 2741 was 0. 16 ha while 2742 was 0. 12 ha. In his testimony PW2 said that parcels No. 3605 was 0. 08 while 3606 and 3607 were 0. 04 ha each. That would appear to agree with the size of 2741.

In addition to the above shortcomings the failure of the Land Registrar to see the defendant’s complaint as a boundary dispute and the fact that he did not visit the site before canceling the plaintiff’s title were irregular in my view. The fact that the plaintiff was never accorded a hearing before his title to plot no. 3605 comprising 0. 08 ha. lends credence to his dissatisfaction with the cancellation of his title.

Having considered this evidence adduced in this case as a whole I am not satisfied that the cancellation of the plaintiff’s plot No. South Sakwa /Barkowino/3605 was made after proper investigation had been carried out and the plaintiff having accorded a proper hearing. In those circumstances all the order of the Siaya Land Registrar canceling the plaintiff’s title No. South Sakwa/Barkowino/3605 are set aside. The plaintiff is to have the costs of this suit . I have not granted the plaintiff the reliefs he sought in prayer (a) and (b) of the plaint as I was not given sufficient data to enable me grant them.

Dated and delivered this 21st day of April 2004.

B.K. TANUI

JUDGE

In the presence of:-

Mr. Miruka Owuor for the plaintiff and Mr. Omaya for the defendant.

B. K. TANUI

JUDGE