[2022] KEELC 1658 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

ELC NO. 14 OF 2015

EMMANUEL SATIA........................................PLAINTIFF

VERSUS

YOHANA KEMBOI...............................1ST DEFENDANT

HON. ZIPPORAH KITTONY..............2ND DEFENDANT

As Consolidated with

KITALE ELC No. 155 of 2015

Between

HON. ZIPPORAH KITTONY...................PLAINTIFF

VERSUS

EMMANUEL SATIA...............................DEFENDANT

JUDGMENT

1. The Plaintiff sued the 1st Defendant on 16/02/2015, claiming to be lawful allottee of Plot No. 957 Kitalale Settlement Scheme (herein referred to as Plot 957). He averred that he was allocated Plot No. 957 in the year 2000 onto which the Defendant trespassed on 27/12/2014. He stated that the Defendant forcefully entered onto the parcel and started working on it thereby interfering with his quiet possession of and activities on it. He prayed for a declaration that he was the owner of the said parcel of land and that the Defendant had no proprietary interest on it. He also prayed for a permanent injunction against the Defendant, his servants and or agents from trespassing on, ploughing or in any other way interfering with his peaceful use and possession of the parcel of land.

2. He amended his Plaint on 25/07/2017 after the Court granted him leave on 17/07/2017 to do so. By the amendment plaint, he enjoined the Second Defendant who was the Plaintiff in ELC No. 155of 2015.

3. Before then, the 1st Defendant, by then sued as the only one, had filed a Defence on 12/04/2016 by which he stated that he had always been in occupation of Plot No. 942 Kitalale Settlement Scheme(herein referred to as Plot No. 942) of by virtue of being a worker of Hon. Zipporah Kittony whom he averred was the lawful owner of the said Plot. He stated that he never trespassed onto Plot No. 957 which he pleaded belonged to one, Isaack Rotich. He then stated that the Plaintiff relied on forged documents to claim ownership of Plot No. 957which Plot was distinct and separate from Plot No. 942. He pleaded that it was the Plaintiff who instead had trespassed onto Plot No. 942. He prayed for the dismissal of the Plaintiff’s claim.

4. Upon being served with the Amended Plaint, both the Defendant and the added Defendant filed a joint Amended Defence on 18/09/2017. By it, in addition to the earlier defence, the 2nd Defendant averred that she was the lawful owner of Plot. No. 942 measuring 4. 0 Ha or thereabout. Both defendants denied ever laying a claim on the suit land (Plot No. 957) or trespassing thereon.

5. In regard to the consolidated suit, by a Plaint dated 08/12/2015 the Plaintiff (Hon. Zipporah Kittony) brought Kitale Civil Suit No. 155 of 2015. In it she sued the Defendant (Emmanuel Satia) claiming that in or about January, 2015 the Defendant (the Plaintiff in the lead suit) trespassed onto Plot. No. 942 Kitalale Settlement Scheme in Trans Nzoia Court, measuring 4. 0 Ha or thereabout which belonged to her. She prayed for a declaration that the said parcel of land belonged to her. She also prayed for an order of eviction against the Defendant from the said parcel of land and a permanent injunction against him or anyone claiming through him from trespassing onto or doing any acts of commission or omission on the said parcel of land.

6. The Defendant entered appearance and filed a defence by which he denied ever trespassing onPlot No. 942or claiming it. On the other hand, he averred that he owned Plot No. 957 onto which one Yohana Kemboi, the 1st Defendant in this matter, had trespassed onto and the Court found him guilty of contempt of Court in Kitale ELC No. 14of2015. On 21/06/2016, this Court ordered the consolidation of the two suits but did not specify which one was to be the lead file. However, since the proceedings leading to the judgment herein were in ELC No. 14of2015it is taken to be that it became the lead file.

THE EVIDENCE

7. PW1, Violet Wasike, a Surveyor working with the Trans Nzoia County Survey office testified that upon receiving summons to verify the acreage and occupants of Plot Nos. 942 and957 Kitalale Settlement Scheme, she, together with two other surveyors and the Settlement Adjudication Officer visited the ground in the presence of two village elders. She did so on 15/09/2019 in the presence of the Plaintiff and one Alex Kipsambu who represented the 1st Defendant and the 2nd. Her information as collected on the ground was that the Plaintiff owned Plot No. 957 while Zipporah Kittony, the 2nd Defendant, owned Plot No. 942.

8. She testified that she and her colleagues used the Registry Index Map (RIM) of Kitalale Settlement Scheme Phase 3 and other survey instruments to do their work. They verified the total acreage of Plot No. 957 as being approximately 4. 1 Ha. They drew its sketch map which she produced as P. Exhibit 1. She testified that the RIMthey used did not show Plot No. 942 as bordering Plot No. 957. She produced as P. Exhibit 2the certified copy of the RIM used. She then testified that they never visited Plot No. 942 since it was neither on the RIM nor did it border or was not near Plot No. 957.

9. Upon cross examination she stated that the did not know the owner of Plot No. 942 but she stated that it may be on a different sheet (RIM). Her evidence was that the suit land was Plot No. 957 and not Plot No. 942. She testified further that they did not bother to visit Plot No. 942 as it was not the plot in question.

10. The Plaintiff,Emmanuel Satia, a lecturer at Moi University, testified as PW2. He stated that he owned Plot No. 957 in Kitalale Settlement Scheme measuring approximately 4. 0 hectares which to him translated to 10 acres. He testified that he was given an allotment letter thereto by the Provincial Settlement Officer in 2003. The letter was dated 20/08/2000. He produced it as P. Exhibit 3. He made the requisite payments thereon amounting to Kshs. 12,000/= and others. He attempted to produce the receipt but it was objected to for the reason that it had not been served upon the Defendant whereupon the Plaintiff was stood down to enable him file further documents.

11. Later, on 15/11/2021,PW2 continued with his testimony. He adduced evidence that the payment of Kshs. 12,000/= was for the title while the other payments were for processing it. The other payments totaled to Kshs. 1,375/=. He produced the Allotment letter as P. Exhibit 3(a) and the receipts as P. Exhibit 3(b). He then closed his case.

12. The Defendants, though served did not attend Court. It appeared from the record that after service, the Advocates for the Defendants filed a “Notice of Cessation to Act” which is a document not known in law. Thus, in absence of both the Defendant and learned counsel, the defence was closed.

13. The Plaintiff then submitted by summarizing the evidence on record. He then relived on the case of Joseph Kagunya v. Boniface K. Mulli and 3 others (Nairobi ELC No. 268 of 2003. In the matter, the learned trial judge stated that once land is allotted and the allottee meets the conditions therein, the land is no longer available for allotment since the allotment confers an absolute right of ownership except where it is challenged by the allotting authority or it is found to be acquired by fraud, mistake or representation or done illegally or against public interest.

DETERMINATION

14. The parties did not formulate the issues herein. Thus, upon careful consideration of the pleadings, the evidence and the submissions, the Court formed the opinion that the following were the issues for determination:-

a) Whether the Plaintiff was the owner of land parcel No. Plot 957 Kitalale Settlement Scheme;

b) Whether the Defendants trespassed onto Plot No. 957;

c) Whether an injunction should issue against the Defendants as prayed;

d) Whether the Plaintiff trespassed onto Plot No. 942 and if an injunction should issue against the Plaintiff as prayed in Suit No. 155 of 2015;

e) What orders to issue and who to bear the costs of the suits?

15. I set out to analyze the issues step by step. I begin with the first one.

a)Whether the Plaintiff was the owner of land parcel No. Plot 957 Kitalale Settlement Scheme

16. In the law of evidence, the guiding rule is that, unless otherwise provided for, he who alleges must prove the allegation to the required standard. Thus, the burden rests on the person who seeks the Court to make a finding in his or her favour about certain facts. The Plaintiff was obligated to prove the first three issues while the Defendants bore the burden of proving the fourth and fifth.

17. It regard to the ownership of Plot No. 957,PW 2 testified on how in the year 2000 he was allocate the said Plot by the Provincial Settlement Officer. He received the Allotment letter dated 20/08/2006. He made payments thereto as per the conditions on the letter. There were Kshs. 12,000/= and Kshs. 1,375/= for the title and its processing respectively. He produced as P. Exhibit 3 (a) and (b) the receipts evidencing the payments. This evidence was not controverted. Moreover, the Defendants pleaded that they did not lay claim onto the said Parcel of land. For this reason, and relying on the authority cited, I find that the Plaintiff proved that he was the lawful owner of Plot No. 957.

b) Whether the Defendants trespassed onto Plot No. 957

18. On the issue of trespass by the Defendants onto Plot No. 957 as pleaded by the Plaintiff, PW2 testified how the 1st Defendant had, on the authority and instructions of the 2ndDefendant entered onto the disputed parcel of land in on or about the 27/12/2014. He started cultivating thereon. He then sued him, first and an injunction was issued against him. It is clear from the record that upon the order of the Court being issued, at one time the 1stDefendant repeated the same activities of cultivating the said parcel of land and was found guilty of contempt of Court over the same.

19. PW1 testified on that on 15/09/2016 she, together with two other officers, visited the disputed parcel of land. They used the RIM which she produced as P. Exhibit 2 and other instruments of survey to locate the disputed parcel of land. It was the same parcel of land which was shown to them by both the Plaintiff and one Alex Kipsambu the representative of the Defendants. It is thus clear that since both witnesses identified the said parcel of land on the ground to be Plot No. 957 and it is the same one the 1st Defendant had cultivated on without permission of the Plaintiff, the Plaintiff proved the element of trespass onto the Plot.

c) Whether an injunction should issue against the Defendants as prayed

20. An injunction is an equitable remedy granted on a discretionary basis but upon proof of the elements requisite thereto. The Plaintiff has established that he is the legal owner of Plot No. 957. He has also established that the Defendants trespassed thereon without any colour of right. According to him the Defendant’s activities on the said Plot deprived him of the use and quiet possession thereof.

d)Whether the Defendants trespassed onto Plot No. 957

21. It is trite law that he who alleges a fact proves it unless the law specifically shifts the burden to another person. Under Section 107 (1) of the Evidence Act, it is provided that, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The Defendants sued the Plaintiff in the consolidated suit, claiming that the Plaintiff trespassed onto Plot No. 942 which belonged to the 2nd Defendant. When the matter came up for hearing, the Defendant attended Court to adduce evidence in support of her claims. To the extent that the Defendant failed to give evidence in support of her case, her entire claim fails.

e)What orders to issue and who to bear the costs of the suits

22. Since the Plaintiff has succeeded in his claim against the defendants on a balance of probabilities in this suit, judgment is hereby entered for him against the defendants jointly and severally as follows:-

(a) A declaration be and is hereby issued that the Plaintiff is the rightful owner of land Parcel No. 957 Kitalale Settlement Scheme and the Defendants have no proprietary rights whatsoever over it.

(b) A permanent injunction be and is hereby issued restraining the defendants, their servants and/or agents from trespassing upon, ploughing or in any other way interfering with the Plaintiff’s peaceful and quiet possession of land parcel No. 957, Kitalale Settlement Scheme.

(c) Costs of this suit and interest thereon.

(d) The Plaintiff’s suit No. 155 of 2015 be and is hereby dismissed with costs to the Defendant therein.

DATED, SIGNED AND DELIVERED AT KITALE THIS 3RD DAY OF FEBRUARY, 2022.

DR. IUR FRED NYAGAKA

JUDGE, ELC, KITALE