[2021] KEELC 4496 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUSIA

CIVIL CASE NO. 70 OF 2017

FRANCIS EKIS OTIENGI ...............................................PLAINTIFF

= VERSUS =

LAWRENCE ILUKOL OMUNYI................................ DEFENDANT

J U D G E M E N T

1. By a plaint dated 29/3/2017 amended on 30th January 2018 and further amended on 1st October 2018 the plaintiff pleaded that he purchased a portion of land measuring 1½ acres from the defendant comprised in land title No. South Teso/Chakol/538. That L.R. No South Teso/Chakol/538 was later subdivided and the plaintiff is now entitled to 1½ acres share to be curved from the resultant number South Teso/Chakol/2902. He pleaded further that after succession, he engaged a surveyor to parcel out his portion but the defendant was uncooperative for the process to be completed leaving the plaintiff no option but to commence these proceedings to get assistance.

2. The plaintiff filed this suit to be given an order directing the defendant to apportion the plaintiff’s share and also sign the necessary documents as well as pay general damages for losses the plaintiff has incurred. Thus the plaintiff seeks judgment against the defendant for;

(1) The plaintiff claims against the defendant is for an order directing the defendant to sign all the relevant forms and surrender the original title deeds to my private surveyor; who is currently holding the documents to curve 1½ acres from the original land title deed SOUTH TESO/CHAKOL/2902 together with general damages has incurred on this matter.

(2) The plaintiff claims against the defendant is for an order directing the defendant to sign all the relevant forms and surrender the original title deeds to his private surveyor; who is currently holding the documents to curve 1½ acres from the original land title deed SOUTH TESO/CHAKOL/2902 together with general damages has incurred on this matter. In default the executive officer of this honourable court be empowered to sign all relevant documents to effect the transfer process.

(3) Cost of this and interest.

(4) Any other orders the honourable may deem fit to grant the plaintiff.

3. The defendant in response filed a statement of defence on 12th My 2017 which was amended on 5th July 2018. The defendant denied that there has been any subdivision of the original land title South Teso/Chakol/538. The defendant pleaded that it is the plaintiff who caused the delay in the acquisition of his title by filing of unnecessary objection proceedings. He urged the court to dismiss the suit with costs.

4. At the close of pleadings parties called oral evidence. The plaintiff called 3 witnesses while the defendant relied on his sole evidence. The plaintiff testified as PW1 on 18/7/2018 stating that the defendant approached him in 2014 to sell him his land. That he was showed the land which was at the time planted with maize. The land for sale was L.R No. 538 and initially portion sold was 1¼ acres before the defendant added ¼ making size sold at 1½ acres. PW1 stated that the agreed purchase price was Kshs.225,000 and he produced the sale agreement as Pex 1. It is the plaintiff’s case that they agreed he would take possession after the maize were removed. PW1 continued that he tried to take possession after the maize were removed but the defendant refused. He reported the matter to the Assistant Chief who referred him to the Chief.

5. The witness said that the Chief summoned the defendant (summons producedPex 2) but the defendant sent his brother Charles Ominya to the meeting with an agreement (Pex 3) confirming the plaintiff would be given land. That the defendant included the plaintiff as a beneficiary in the letters of administration taken in respect of the suit land which was registered in the names of Sylvester Omunyi Ominya – deceased produced as Pex 5.

6. The plaintiff also produced a receipt confirming payment he made to a surveyor as Pex 4. He also conducted a search dated 1/2/2017 as Pex 6. He urged the court to grant him the prayers sought in the plaint. In cross-examination, the plaintiff stated the defendant refused the surveyor from surveying the sold portion.

7. Martin Etyang testifying as PW2 said he is a neighbour to the defendant. That the plaintiff told him he had bought the portion of the suit land. PW2 saw the plaintiff come to view the land several times. That he was present when the defendant showed the plaintiff boundaries of the portion he was giving him. In cross-examination, PW2 said the defendant and his brothers pointed the boundaries of the plaintiff’s portion in the presence of the chief.

8. Esaba Antony Hago testified as PW3. He knew the plaintiff as a neighbour and friend. That the defendant is also his neighbour and he had purchased a portion of the suit land form the defendant’s brother called Quinten Ochary – deceased. PW3 stated the defendant started excluding buyers during the succession process hence he was summoned by the chief. That there were 11 purchasers out of which two already got their titles. The plaintiff is yet to get his.

9. The defendant gave his evidence on 19th October 2020. He knew the plaintiff because he sold him land in October 2014. The defendant said they walked around the land and the plaintiff liked it. According to him, the purchase price was Kshs.190,000. That the land was not measured but the estimate size was 1¼ acres. That they took out letters of grant and included the plaintiff as a beneficiary.

10. The defendant continued that the plaintiff came to the land accompanied with the surveyor and the Assistant Chief to survey the land. The defendant stated that during this visit the plaintiff complained the land was small and demanded for more land. That this was the point of their disagreement as he had sold the plaintiff only his share in the land. He denied refusing the plaintiff to use the land. The defendant said that the plaintiff should survey his share and get his title. In cross-examination, the defendant denied adding the plaintiff a ¼ acre because he had no more land to add. He denied the signature on the additional document. He further denied that the demarcation had been placed before the succession proceedings were undertaken. That everyone’s share is indicated in the certificate of grant that was issued. This marked the close of the defence case.

11. Only the plaintiff filed written submissions on 3rd December 2020. From the evidence presented by the defendant, it is clear that he is not denying selling land to the plaintiff. He also admitted that the plaintiff should get a title to the land sold. However, the defendant did not explain why he has not executed the necessary documents to effect the transfer in the plaintiff’s name. This could be on account of his evidence that the plaintiff is entitled only to 1¼ acres and not 1½ acres as claimed by the plaintiff.

12. The plaintiff’s document produced as exhibit 3 is an agreement dated 25th October 2015 signed between him and the defendant and witnessed by 4 people inter alia William Omunyi and Charles Omunyi. The agreement confirmed that the size of the land sold was 1½ acres. The defendant denied his signature on this document but did nothing more to establish that his signature on the document was forged. To corroborate that the land sold was 1½ acres, the plaintiff further produced document marked as exhibit 5 a certificate of confirmed grant in the estate of Sylvester Omunyi Ominya. The plaintiff’s share in the grant with respect to L.R South Teso/Chakol/538 is indicated as 0. 6ha. The defendant did not present evidence to show that this grant has been revoked and or set aside. Indeed the defendant confirmed that each persons’ share in the suit land was provided for in the certificate of grant

13. In the certificates of official searches for L.R No. South Teso/Chakol/538 and 2902 (Pex 6 & 7), the plaintiff’s name is included as one of the registered owners (pursuant to the letters of grant). The plaintiff has thus proved on a standard of probability that he has an interest in the suit land South Teso/Chakol/2902 and the interest is specified as 1½ acres and/or 0. 6 ha. He is thus entitled to get a title in his name for the portion measuring 0. 6ha. Consequently, to enable him get the title, I do grant him the orders he is seeking in the plaint.

14. Accordingly, I enter judgement for the plaintiff against the defendant for orders that;

(a) The defendant is hereby issued by an order directing him to sign all the relevant forms and surrender the original title deeds to plaintiff’s private surveyor; currently holding the subdivision documents to curve 1½ acres from the original land title deed SOUTH TESO/CHAKO/2902

(b) In default of the defendant complying with (a) above within 21 days of this judgement, the production of the title did is dispensed of and the Deputy Registrar of this court shall execute the necessary papers on behalf of the defendant to enable the plaintiff acquire his title in respect of the 0. 6ha acres of land comprised in title No. South Teso/Chakol/2902.

(c) No damages are awarded as the same was not proved

(d) Costs of the suit.

Dated, signed & delivered at BUSIA this 4th day of February, 2021.

A. OMOLLO

JUDGE