[2017] KEELC 851 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA IN BUSIA

LAND & ENVIRONMENTAL DIVISION

ELCNO. 5 OF 2014

DOUGLAS WABWIRE WABIDONGE…………..…..……….PLAINTIFF

VERSUS

JOHN OCHIENO WANJALA........................................1ST DEFENDANT

MAXISON ODUORI .....................................................2ND DEFENDANT

LUCAS BARASA .........................................................3RD DEFENDANT

J U D G E M E N T

1. By a plaint dated 13/1/2014 and filed here on 15/1/2014, the Plaintiff – DOUGLAS WABWIRE WABIDONGE – sued the three Defendants – JOHN OCHIENO WANJALA, MAXISON ODUORI and LUCAS BARASA – claiming that the three forcefully entered onto his land and started cultivating it without his consent. That land is L.R. BUKHAYO/MUNDIKA/2932(“disputed land” here after)

2. More specifically, the Plaintiff is asking for the following prayers:

(a) A permanent injunction restraining the Defendants by themselves, their agents, workers, and/or servants from trespassing and/or interfering with L.R. BUKHAYO/MUNDIKA/2932.

(b) Costs of the suit.

(c) Any other alternative relief which this honourable court may deem fit to grant.

3. The Defendants responded to the suit vide a defence dated 25/2/2014 and filed on 26/2/2014. They denied the Plaintiff’s allegations and pleaded, interalia, that they were all born and raised up on land parcel No. L.R. BUKHAYO/MUNDIKA/755 registered then in the names of PETER W. WAMBOKO and SEFERIO W. WAMBOKO. According to the Defendants, their late father - PETER W. WAMBOKO - was entitled to 2. 2Ha of the land and that is where they are living. They pleaded that they are infact the legal representatives of their late father’s estate and have valid title deeds to the portions of their parcels of land. The Defendants also plead that the Plaintiff’s suit comes rather late in the day and is therefore caught up by provisions of Section 7 of Limitation of Actions Act (cap 22).

4. The Plaintiff’s side called three witnesses: Himself (PW1), SABASTIAN PAMBA NAGELO (PW2) and CHARLES TABU KUUCHA (PW3). The narrative of these witnesses is clear: The Plaintiff bought a portion of land from the original parcel L.R. NO. BUKHAYO/MUNDIKA/755. He bought it from the Defendants father - PETER W. WAMBOKO who co-owned it with one SEFERIO WAMBOKO. After the sale, land parcel No. 755 was sub-divided into two parcels: L.R. BUKHAYO/MUNDIKA/2931 and L.R. BUKHAYO/MUNDIKA/2932. The Plaintiff became the new owner of Parcel No. 2932. This is the disputed land and the Plaintiff says he still has title to it.

5. The defence side called three witnesses. The witnesses are the Defendants themselves, who are all brothers. Their story is different. According to them, the original parcel No. 755 was owned by SEFERIO WANYAMA WAMBOKO and their late father. The size of the land was 4. 2Ha and each was entitled to half of it. A clear boundary showed what each of the two owned. The Defendants were born on the land and have lived there all along. Their parents died and are buried there.

6. The Plaintiff is said to have claimed that he bought the land. This happened after the death of the Defendants father in 1987. The Defendants denied that there was a sale. Then a dispute arose and the matter went to the Land Dispute Tribunal at MATAYOS. The matter was heard but the decision of the tribunal was not adopted by a court of competent jurisdiction.

7. The Defendants said they got to know of the sub-division of parcel No. 755 into parcels Nos 2931 and 2932 in 1990. They said that despite that sub-division, the boundary was not changed on the ground and the old boundary remains todate.

8. The son of the other owner of parcel No. 755 was GEORGE ODHIAMBO WANYAMA. The other owner - SEFERIO W. WAMBOKO - died in 1998 and the son - GEORGE ODHIAMBO WANYAMA - became the legal representative of his estate. The estate included parcel No. 2931. That parcel of land was then subdivided into two: Parcel No. 7565 and 7566. According to the Defendants, parcel No. 7565 was 2. 2Ha and parcel No. 7566 was 2Ha. Parcel No. 7565 became the entitlement of the Defendants late father while parcel No.7566 became the entitlement of the GEORGE ODHIAMBO’s late father. And as these fathers were dead, the Defendants and GEORGE ODHIAMBO became the owners of the two parcels respectively.

9. The Defendants averred that the Plaintiff’s title only exists on paper. It does not exist on the ground. The Defendants said further that their Parcel No. 7565 was further sub-divided into other parcels ranging from Nos 10235 to 10241. It was the Defendants position that the alleged sale to the Plaintiff was fake.

10. After hearing, both side filed written submissions. The Plaintiff’s submissions were filed on 28/8/2017. According to the Plaintiff, the sub-division referred to by the Defendants related to land parcel No.2931. They do not relate to his own parcel No. 2932. The disputed land - parcel No. 2932 - therefore still exists. The court was urged to find that the Plaintiff’s claim is proved on a balance of probabilities. The Plaintiff then should be granted the orders he seeks.

11. The Defendants submissions were filed on 21/9/2017. The submissions highlighted the salient aspects of the evidence given by both sides. According to the Defendants, it is well shown that they own the parcels of land they occupy. They also submitted that land parcel No. 2932 does not exist both at the Land Registry and on the ground. The Plaintiff was faulted for not conducting a survey to establish whether his land exists or the encroachment, if any, by the Defendants onto the land, if it exists.

12. On the issue of limitation, the Defendants said they have been on the land even before the alleged date of purchase by the Plaintiff. That is a period covering 1987, when the land was allegedly sold, to 2014, when the suit was filed. All that time, the Plaintiff has never taken action. That, the Defendants stated, is over a period of 24 years. Section 7 of Limitation of Actions Act (Cap 22) enjoins that an action to recover land cannot be brought after a period of 12 years. The Plaintiff’s suit is said to be caught up by that provision.

13. After all the submissions the court was urged to dismiss the Plaintiff’s case with costs.

14. I have considered the pleadings, evidence, and rival submissions. The Plaintiff filed his suit and proceeded on the basis that land parcel No. 2932 is his own and the Defendants have trespassed onto it. To show it is his own, he showed the title. But the Defendants filed defence and not only denied trespass but also asserted that the parcels of land they occupy are their own. And while the Plaintiff availed documentation showing the process leading to acquisition of the disputed land, the Defendants also availed documentation showing that they own their parcels of land.

15. But something cropped up which should have made the Plaintiff change tact or approach. And that something is this: the assertion that the Plaintiff’s land does not exist in the land’s office or even on the ground. This should have jolted the Plaintiff to give a reality check to his allegations of ownership. He should have involved the lands office for a survey or re-confirmation of ownership.

16. I have looked at the documentation availed by both sides. The Plaintiff showed his title deed. It was issued in 1987. It show his land as parcel No. 2932 measuring 1. 6Ha. He also showed a copy of official search dated 9/12/2013 confirming this fact.

17. But something baffling happens when the documentation availed by the Defendants is considered. The documents show the original parcel of land as L.R. BUKHAYO/MUNDIKA/755 measuring 4. 2Ha. That land was subdivided and its title ceased to exist on 17/9/1987. The resultant parcels were L.R. BUKHAYO/MUNDIKA/2931 and L.R. BUKHAYO/MUNDIKA/2932. The Plaintiff became the new owner of parcel No. 2932, which is the disputed land. Parcel Nos. 2931 and 2932 were said to be 2. 6 Ha and 1. 6 Ha respectively.

18. Land parcel No. 2931 was then sub-divided on 12/2/2002 to produce parcels Nos. 7565, 7566 and 7567. Parcel No. 7565 was said to be 2. 2Ha, Parcel No. 7566 was said to measure 1. 8 Ha. The documents for parcel No. 7567 were got given and its size remains unknown. Then later on, Parcel No. 7565 was shown to have been further sub-divided with the resultant parcels ranging from 10235 to 10241.

19. The conundrum is this: Parcels Nos 7565 and 7566 which are said to measure 2. 2Ha and 1. 8Ha respectively are said to be derived from parcel No. 2931 which measures 2. 6Ha. What this means is that the total size of the two parcels, which is 4. 0Ha, is larger than the size of parcel No.2931 (2. 6Ha) from which they were derived. The question that begs an answer is whether the total size of the two parcels is logically derivable from the size of parcel No.2931. And the obvious answer is NO. I say again: A survey was necessary in this case.

20. But this baffling state of affairs does not end there. Parcel No.2931 is also said to have produced parcel No. 7567 on sub-division. Although we do not know the size of this parcel, one also wonders whether it could be a sub-division of parcel No. 2931. Let us not forget that the original parcel No. 755 was 4. 2Ha. Parcels Nos 7565 and 7566 both have a total size of 4. 0Ha. From the size of parcel No. 755 (4. 2Ha), that only leaves 0. 2Ha. Yet there is parcel No. 7567 that was created together with parcel Nos. 7565 and 7566. This remaining part of parcel No. 755, which is 0. 2Ha, is the possible size of parcel No. 7567.

21. What all this means is that all these developments seem to have obliterated or erased parcel No.2932 owned by the Plaintiff, hence the claims by the Defendants that the land does not exist. And all these developments happened much later than the time the Plaintiff is said to have become owner of parcel No.2932. And this is why I am saying here that the Plaintiff needed to change his approach once all this information became available to him. He did not and what he wants the court to do is to issue an injunction concerning land whose existence has been put in doubt.

22. One basic requirement which is rarely mentioned in issuance of injunction is certainty. And by certainty is meant, but is not limited to, certainty of the legal requirements applicable and certainty also of the physical entity or location where the injunctive order is meant to apply. In this regard, the court is always cautious that it should not issue an order in vain.

23. But there is also another consideration. And the consideration is this: When one is seeking a permanent injunction of a final nature, as is the case herein, there are requisite legal requirements that need to be met. Those requirements are not the same as those of a temporary or interlocutory injunction. They are different. In Fletcher vs Bealey [1885] 28 ch.O.688,the court held, interalia, that the Plaintiff must show probability of future infringement and that the ensuing damage would be of a serious nature. In this case here the Plaintiff never bothered to demonstrate this.

24. What I have so far said is enough to make a determination of this case. There was mention of Limitation period but I do not deem it necessary to go into it. But even if I were to consider it, it would most likely go in the Defendants’ favour as the Plaintiff never bothered to respond to it.

25. The upshot of what has been said so far is that the Plaintiff has not proved his case on a balance of probabilities. The case is therefore for dismissal and I hereby dismiss it with costs.

Dated, signed and delivered at Busia this 29th day of November, 2017.

A. K. KANIARU

JUDGE

In the Presence of:

Plaintiff: ………………

1st Defendant: ………

2nd Defendant: ………

3rd Defendant: ………

Counsel of Plaintiff……

Counsel of Defendants……