[2016] KEELC 430 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CIVIL CASE NO.175 OF 2011

DAVID OWUOR ODUOL………………………….…..…………….PLAINTIFF

VERSUS

PLISTER AUOCH ODHIAMBO…….. ....................................1ST DEFENDANT

GEORGE WALUKE OJWANG ODHUONGO…..................…2ND DEFENDANT

ZABLON OUMA AHENDA………..…................................….3RD DEFENDANT

WILLIAM ONYANGO GEORGE OKWIRI…............................4TH DEFENDANT

LELESIIT LIMA ANASTASIA………….......................……..5TH DEFENDANT

JUDGMENT

1. David Owuor Oduol, the Plaintiff, filed this suit over land parcels Siaya/Ambira/76 and 81 or the subdivision thereof through the originating summons dated 17th October 2011, against Plister Aluoch Odhiambo, George Waluke OjwangOdhuongo, Zablon Ouma Ahenda, William Onyango George Okwiri and Lelesiit Lima Anastasia,hereinafter refered to as 1st to 5th Defendant seeking for the following determinations:

“1. Whether the said land is registered in the names of the Defendant herein.

2. Whether the Plaintiff is in possession of the said parcel of land or lived on the property for 57 years or since 1954 as an ancestral land.

3. Whether at the time the time the Defendants became the registered proprietor of the said land the Plaintiff had been in adverse possession of the said parcel for more than 12 years.

4. Whether at the time of the alleged transfer or exchange of the said parcel of land to the Defendants the registered proprietor’s title to the said parcel of land had become extinguished.

5. Whether the Defendants obtained a good title to the suit parcel of land.

6. Whether the Plaintiff has acquired Title to the said parcel of land by adverse possession.

7. Whether there should be a declaration that the Plaintiff be registered as the proprietor of the said parcel of land.

8. Whether the register should be rectified so that the Plaintiff be registered as the proprietor of the suit parcel of land in the place of the Defendant.

9. Whether the registrar of the High Court should execute transfer forms to effectuate such transfer on behalf of the defendant.

10. Who should bear the costs of this suit.”

The Plaintiff claim is based on adverse possession of “part of land parcel No. Siaya/Ambira.76 and title No.Siaya/Ambira/81 or subdivision South Ugenya/Ambira/2325 and or South Ugenya/Ambira/2326 previously registered in the names of George Waluke Ojwang Odhuongo and currently in the names of Plister Aluoch Odhiambo, Zablon Ouma Ahenda, William Onyango George Okwiri, and Lelesiit Lima Anatasia for a period of more than 57 years……”

2. The 4th and 5th Defendant opposed the claim by the Plaintiff through their joint replying affidavit sworn on 3rd November 2011 whose highlights are as set out hereinbelow:

a) That they bought land South Ugenya/Ambira/2326 from 3rd Defendant at Ksh.95,000 /= in 1998. That after meeting all the statutory requirements, the land was transferred to them.

b) That they took possession of that land upon buying it and established their home on it.

c) That they have been using that land exclusively and that the Plaintiff has not been using it.

3. The Plaintiff responded to the replying affidavit filed by 4th and 5th Defendant through a further affidavit sworn on the 6th July 2012, summarized as follows:

a) That the subdivision of land parcel Siaya/Ambira/81 into two parcels was unlawful and fraudulent as 3rd Defendant had been warned that its equitable owner (the Plaintiff) was away on employment.

b) That the 4th and 5th Defendants were given parcel Ugenya/Ambira/2326 which was subdivided fromSiaya/Ambira/81 without paying the Sh.95,000/= as alleged and that statutory requirements were not complied with before they got registered with the said parcel.

4. The hearing commenced on the 8th May 2014 before my predecessor, A.K. Kaniaru J. The record shows that Mr Ayayo and Ken Omollo advocates represented the Plaintiff and Defendants respectively throughout the proceedings. That in support of the Plaintiff’s case, the Plaintiff testified as PW1 and called Pius Owino Adala, Silvanus Oire Jacob, and Rose Owuor Oduol who testified as PW2, PW3 and PW4 respectively. That in support of the Defendants case the 2nd, 3rd, 4th and 5th Defendants testified as DW1, DW2 DW3 and DW4 respectively. The following is the summary of the Plaintiff and Defendants cases from the evidence adduced;

A. PLAINTIFF’S CASE;

That land parcel Siaya/Ambira/81 was the plaintiff’s ancestral land as it belonged to his grandfather, Oloo Okech, who gave birth to his father Oduol Oloo. That Oduol Oloo had two other brothers namely, Okech and Owuor and that they are now all deceased. That the Plaintiff was born on that land and has lived on it since. That the land had been registered in the names of his uncle, Peter Omija Okech who was brother to his father. That in 1998 he learnt that the land had been subdivided into parcels 2325 and 2526. That Peter Omija Okech had exchanged the land with Walukhe Odhuongo Ojwang, who is father to the 2nd Defendant. That the said Okech died in 1995 and to his knowledge no succession cause has been filed over his estate. That the transfer of that land to 3rd Defendant was without filing a succession cause. That Walukhe, the father to 2nd

Defendant, died in the 1980s and no succession cause has been filed in respect of his estate, though it is indicated in the green card of parcel Siaya/Ambira/76 that he transferred it to 1st Defendant on 6th December 2005. The Plaintiff produced copies of the green card for parcels Siaya/Ambira/81 and 76 as exhibits. He also produced copies of search certificates for parcel 2325 and 2326 as exhibit. That he established a home at parcel 81 but the houses were demolished by the Defendants who only left a 12 by 12 feet room that he still lives in. The Plaintiff testified that parcel Siaya/Ambira/76 belonged to his father Oduol. He further told the court that the Defendants caused his arrest and that of his wife, Rose Awuor Oduor and they were charged in Ukwala S.R.M. Criminal Case No.257 of 2011. He produced a copy of the proceedings as exhibit. PW1 testified that he had lodged claims over parcel 81 and 76 against the Defendants with the Siaya Land Disputes Tribunal in cases number 93 of 2009 and 670 of 2000 respectively, but lost before filing this suit. That the Ukwala Criminal case was about forceful detainer of parcel 81 and that they were acquitted. PW2 confirmed that land parcel 81 belonged to Oloo Okech who was grandfather to PW1. He testified that PW1 has lived on it from 1966 to the date he was evicted while this case was pending in court. He also testified that parcel 76 which belonged to Oduol Oloo, father to PW1, is now occupied by 1st Defendant. PW2 testified that he is 63 years old and that the Plaintiff is entitled to inherit the properties of his father and grandfather. The witness testified that he witnessed the Plaintiff being evicted from his land but did not know that the eviction was pursuant to a court order. That during the eviction, the Plaintiff’s four houses were demolished leaving only one grass thatched house which the Plaintiff moved into. PW3 testified that he was born in 1946 and that he knew that the Plaintiff elder brother, Peter Ominja Okech, had given the 3rd Defendant a portion of land to live on and that 3rd Defendant used trickery to be registered with it. PW4 testified that she got married to PW1 in 1977. She told the court how she and her husband were arrested over their use of parcel 81 and charged. She also told how their four houses out of five were demolished.

B. DEFENDANTS CASE;

DW1 (2nd Defendant) told the court that 1st Defendant is his mother and that his father is deceased. That they live on parcel 76 which was transmitted to 1st Defendant through Maseno Succession cause No.16 of 2005 as confirmed in the copy of the grant he produced as exhibit. He confirmed that the land was first registered in the names of Peter Ominja Okech, before going to his father’s names and then 1st Defendant. That Plaintiff had filed a claim over that land against 1st Defendant before the Tribunal in 2009 and lost. DW1 said that his father had purchased land parcel 76 from Peter Ominja Okech but did not have the sale agreement of the transaction. The witness stated during cross examination that when his father bought parcel 76 he was instead given title for parcel 81. That when the mistake was realized in 1992, his late father and Peter Ominja Okech exchanged the parcels in November 1992. However DW1 stated that they had occupied the correct parcel of land and that they therefore continued occupying parcel 76. He added that though 3rd Defendant comes from the clan of his mother, he did not know how he acquired land parcel No.81. DW2 testified that he bought parcel 81 from Peter Ominja Okech and got registered as proprietor on 28th June 1996. That in 1999 he subdivided it into South Ugenya/Ambira/2325 and 2326 and transferred the later parcel to 4th and 5th Defendants. That in 2000, the Plaintiff entered onto parcel 2325 and constructed a house without his permission. That when he asked him to vacate he filed Tribunal case No.670 of 2000 which was dismissed. The Tribunal award was adopted in Siaya RMC No.41 of 2000. The Plaintiff then filed an appeal with the Provincial Appeals Committee No.53 which he lost and the Siaya court ordered that the Plaintiff to vacate from the land in its order of 10th May 2011. That the Plaintiff was subsequently evicted by the police but he remained outside the demolished houses. The witness said he then reported to the police and the Plaintiff was arrested and charged in Ukwala court but later acquitted. The witness denied living with Oduol Oloo or Peter Walukhe or working with them. DW3 testified that 5th Defendant was his wife and that they bought parcel 2326 from DW2 in 1998 at Ksh.95,000/= and have been living on it since. During cross examination DW3 stated that though they had made a sale agreement with DW2, he had not come with a copy to court. That he only got to know about the restriction filed against his title on 21st July 1999 after being served with the suit papers in the case.

5. The Plaintiff’s and Defendants’ counsel filed written submissions dated 21st April 2016 and 6th July 2016 respectively.

6. The following are the issues for the court’s determination;

a) Whether the Defendants are registered as proprietors of the suit lands as variously described.

b) Whether the Plaintiff has been in exclusive possession and occupation of the suit lands or any part thereof for more than 12 years.

c) Whether the Defendants title to the suit land has been extinguished under Section 38 of the Limitation of Actions Act, Chapter 22 of Laws of Kenya.

d) Whether the Plaintiff should be registered with the suit lands or any part thereof under adverse possession.

e) Who pays the cost.

7. The court has considered the originating summons, the replying affidavit, the evidence adduced by both sides, submission by both counsel and come to the following findings;

a) That though the Plaintiff commenced this suit through originating summons under Order 37 Rule 7 of Civil Procedure Rules, the parties entered the following consent on the 31st January 2013;

“ by consent the (Originating summons) is now converted into a suit which should be set down for hearing. Viva vole evidence to be taken …..”

That though it is not apparent on the face of the consent recorded by the court, the same may have been entered pursuant to Order 37 Rule 19(1) and (4) of the Civil Procedure Rules which states;

“ 19(1) where, on an originating summon under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been beganby filing a plaint, it may order the proceedings to continue as if the cause had been so began and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to anyof the parties to add to, or to apply for particulars of those affidavits.

2)………………

3)………….

4) Any reference in these rules to proceedings began by plaint shall unless the context otherwise requires, be construed as including a reference to a cause proceedings under an order made under sub rule (1).”

b) That in view of (a) above, the submission by counsel for the Defendants that the originating summons herein is defective and that the suit untenable for offending the provision of Order 37 Rule 7 of Civil Procedure Rules in that it does not contain an extract of the title for the land subject matter is misplaced. That the submission would have had merit had the originating summons proceeded to be dealt with through affidavit evidence, and that the Plaintiff is found to have failed to annex an extract of the title for the parcels of land he sought to be registered with through adverse possession. That in the current suit, following the consent of 31st January 2013 converting the suit commenced through the originating summons to an ordinary suit to be dealt with through viva voce evidence as opposed to affidavit evidence, the parties took further directions on 13th March 2013 to file and service documents. Thereafter witness statements and list of documents were filed and exchanged before the hearing commenced. That among the documents filed and exchanged were copies of the registers and certificates of official searches for the suit lands.

c) That the Defendants did not raise any objection that the Plaintiff had filed a verifying affidavit with the originating summons instead of supporting affidavit before the consent order of 31st January 2013 was entered and it is now too late to raise it in the submissions as the suit proceeded to hearing through viva voce evidence. That a suit commenced through a plaint requires a verifying affidavit like the one filed by the Plaintiff.

d) That from the evidence adduced by DW1, land parcel Siaya/Ambira/76 was bought by his late father, Walukhe Odhungo Ojwang from Peter Ominja Okech. That at the time of transfer, parcel Siaya/Ambira/81 was transferred to his father instead. That when Peter Ominja Okech discovered the mistake in 1992 appropriate steps were taken and Siaya/Ambira/81 was transferred back to Peter Ominja Okech on 4th November 1992 and parcel Siaya/Ambira/76 transferred to Walukhe Odhuongo Ojwang on the same date. The copies of the green cards for the two parcels produced as exhibit P1 and P2 confirms the entries of 4th November 1992. That there is no evidence of fraud adduced on the transaction between Peter Ominja Okech and Waluke Odhungo Ojwang of 4th November 1992 on the exchange of parcels Siaya/Ambira/76 and 81 among the two persons.

e) That the 1st and 2nd Defendants evidence that they reside on parcel Siaya/Ambira/76 and that the Plaintiff has never used that parcel of land has not been rebutted by the Plaintiff. That the Plaintiff’s evidence and that of his wife (PW4) is that their homestead that was demolished was in parcel Siaya/Ambira/81and not parcel 76. That fact was also confirmed by DW2, the 3rd Defendant, who went further to specify the parcel that the Plaintiff was evicted from as South Ugenya/Ambira/2325 which is a subdivision of Siaya/Ambira/81. That the court has not been given any reason to disbelieve that evidence.

f) That land parcels Siaya/Ambira/76 and 81 are according to the green cared registered first on 22nd June 1976 in the names of Peter Omija Okech.That if the Plaintiff believed that the parcels should have been registered in the names of his grandfather and or father, then he had a responsibility to have lodged an objection during the land adjudication in that area in accordance with Section 26 of the Land Adjudication Act Chapter 284 Laws of Kenya. That there is no evidence of any objections or appeals having been filed against the registration of Peter Omija Okech with the two titles. That there is also no evidence of any challenge on the title held by the said registered proprietor, PeterOminja Okech, over the two titles during his lifetime. That there are no particulars of fraud attributed to Peter Omija Okech in the process of getting registered with the two suit lands that have been set out in the pleadings herein. That there is further no evidence adduced by the Plaintiff herein to prove fraud on the part of Peter Omija Okech over his registration as proprietor on the two parcels of land. That the court therefore takes the position that the title held by Peter Omija Okech over the two parcels of land was lawfully and procedurally obtained and that he held good title to the said parcels.

g) That the evidence adduced by the Plaintiff that Peter Omija Okech died on 1995 is unchallenged or not rebutted and even though no documentary evidence in form of a certificate of death was availed, the court will take the year of his death to be in 1995. That the evidence of DW2, the 3rd Defendant, is that he bought parcel Siaya/Ambira/81 from Peter Omija Okech in 1996. That the green card confirms that he got registered as proprietor on 28th June 1996 and at the column for “consideration and remarks” it was indicated “transmission.” That entry of transmission is at variance with the evidence that DW2 gave as he stated that Peter Omija Okech had sought for the land control board approval to their sale agreement and obtained a consent and that he trasnfered the land to him. That if what DW2 stated was true, then the description of the transaction as transmission was erroneously. That the Plaintiff evidence is that the 3rd Defendant used fraudulent means to transfer the land to his names without filing a succession cause for the estate of Peter Omija Okech. That 3rd Defendant on his part testified that they had made a land sale agreement with Peter Omija Okech but did not avail a copy to the court. That the superior Courts have held that where a registered proprietor’s title is challenged, it is not enough for that proprietor to flash the instrument of title and claim it was enough. That was the position taken by the Court of Appeal in Munyu Maina –V- Hiram Gathuna Maina [2013] eKLR where the court held that;

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that isin challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the titleand show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

That the 3rd to 5th Defendants must have known upon being served with the suit papers by the Plaintiff that he challenges their claim to land parcel Siaya/Ambira/81 and the parcels subdivided therefrom being South Ugenya/Ambira/2325 and 2356. That at least the court would have expected the three Defendants to do is to avail all the documents under which they attained registration with the respective parcels. That such documents would include copies of grant and certificate of confirmation if the 3rd Defendant defence is that he acquired land parcel Siaya/Ambira/81 through transmission in adherence to the Law of Succession Act Chapter 160 of Laws of Kenya that guides dealings in properties of persons who died after 1st July 1981. That such documents could also have included the land sale agreements, applications for Land Control board for consent, Letter of consent from the land control board and transfer forms. That no such documents have been availed by 3rd to 5th Defendants to show that they got registered as proprietors of the suit lands in their names lawfully, procedurally, regularly and without any misrepresentation so as to rebut the Plaintiff position that they got registered with the titles fraudulently and unprocedurally.

h) That having held as in (g) above the court finds that the 3rd Defendant did not obtain a good title when he got registered as proprietor of land parcel Siaya/Ambira/81 on 28th June 1996 as the provisions of the Law of Succession Act were not complied with. That it follows that the subdivisions he carried out on Siaya/Ambira/81to create South Ugenya/Ambira/2325 and 2326 was irregular and unlawful as he did not have good title to the parent parcel. That the 3rd Defendant having no good title over Siaya/Ambira/81 from which South Ugenya/Ambira/2326 was subdivided before being transferred to 4th and 5th Defendants on 28

April 1999 means that he did not pass good title to them. That the said subdivision and transfers should be revoked and cancelled and the land parcel returned to the position it was on 4th November 1992 in both registration and proprietorship.

i) That the plaintiff’s claim over land parcel Siaya/Ambira/81 or the subdivisions thereof by adverse possession is misplaced as he could not have been in adverse possession of the land that he believed was equitably and beneficiary his.

j) That having found fault and evidence of illegality in the way the land parcel Siaya/Ambira/81 was transferred from the names of Peter Ominja Okech, after his death without complying with the Law of Succession Act, the court has a duty to issue orders that will revert the land to the names of Peter Ominja Okech to enable it be dealt with in accordance with the applicable law.

k) That the decisions made by the Siaya Land Disputes Tribunal and the Nyanza Provincial Appeals Committee over Land parcel Siaya/Ambira/81 were in excess of their jurisdiction which was as limited under Section3(1) of the Land Disputes Tribunal Act No.18 of 1990 (repealed) for reasons that the dispute and the award related to title to, and ownership of registered land. That their decisions were therefore null and void and hence a nullity and the executions made in pursuant of any such orders was unlawful. That the court can only take the eviction of the Plaintiff and the demolitions of his houses to have been an attempt to defeat his claim of an adverse possessor over land parcel Siaya/Ambira/81 or the subdivisions thereof.

I) That in view of the fact that the Plaintiff had taken the 1st and 2nd Defendants to the Land Disputes Tribunal before coming to this court and that he has partially succeeded in the claim he brought to the court, and so as to encourage harmony between the Plaintiff, 1st and 2nd Defendants, they will each bear their own costs.

8. That the court is satisfied that the Plaintiff has partially succeeded in proving his case on a balance of probabilities and enters judgment in the following terms:

a) That the Plaintiff case against the 1st and 2nd Defendant over land parcelSiaya/Ambira/76 is hereby dismissed with each party bearing their own costs.

b) That a declaration is hereby issued that the 3rd Defendant did not acquire good title upon being registered with land parcel Siaya/Ambira/81 for failure to comply with provisions of the Law of Succession Act.

c) That a declaration is hereby issued that the 3rd Defendant did not pass good title to the 4th and 5th Defendants when he transferred land parcel South Ugenya/Ambira/2326, subdivided from Siaya/Ambira/81, for reasons in (b) above.

d) That in view of (b) and (c) above the court orders that the Land Registrar Siaya to immediately upon receipt of this order, revoke all the subdivisions done on land parcel Siaya/Ambira/81 and revert the registration and proprietorship of that land to the way it was on 4th November 1992 in the names of Peter Omija Okech (deceased) to be thereafter dealt with in accordance with the provisions of the Law of Succession Act.

f) That the Plaintiff costs be paid by 3rd to 5th Defendants jointly and severally.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 19TH DAY OF OCTOBER 2016

In presence of;

Plaintiff Present

Defendants Absent

Counsel Mr Ayayo for the Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016

19/10/2016

S.M. Kibunja J.

Oyugi court assistant

Plaintiff present

Defendant absent

Court: Judgment dated and delivered in open court in presence of the plaintiff and his counsel Mr. Ayayo.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016