[2014] KEHC 3271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO. 254 OF 2009

GEORGE ARWONGA KOMBO ……………………………………… PLAINTIFF

VERSUS

JACKSON ONDARI KOMBO …………………………………….….……DEFENDANT

JUDGMENT

The plaintiff brought this suit against the defendant on 26th November 2009 seeking; an order declaring the plaintiff as the absolute proprietor of all that parcel of land known as LR No. West Mugirango/ Bonyamatuta/115 (hereinafter referred to as “the suit property”) on account of adverse possession for over forty (40) years and an order for specific performance of the contract for sale that the plaintiff had entered into with the defendant with respect to the suit property. In his plaint dated 24th November 2009, the plaintiff averred that at all material times the defendant was the registered proprietor of the suit property which is an agricultural land within the meaning of the Land Control Act Cap. 302 Laws of Kenya.

The plaintiff averred that for over forty (40) years the plaintiff was in full control of the suit property with the consent and permission of the defendant. The plaintiff averred that on 31st May 2008 or thereabouts, the plaintiff and the defendant entered into an agreement for sale of the suit property at a consideration of Kshs. 280,000. 00 of which amount the plaintiff made a down payment of Kshs.242,000. 00 leaving a balance of Kshs. 38,000. 00. The plaintiff averred that the defendant had refused to accept the payment of the balance of the purchase price in the sum of Kshs.38,000. 00 aforesaid thereby breaching the said agreement for sale. It is on account of the foregoing that the plaintiff sought a declaration that he is entitled to be registered as the proprietor of the suit property on account of adverse possession of the same and I believe in the alternative, an order of specific performance to compel the defendant to transfer the suit property to his name.

The defendant entered appearance and filed a defence and counter-claim on 10th May 2010. In his defence the defendant admitted that he is the registered proprietor of the suit property. The defendant however denied that the plaintiff had at all material times been in full control and possession of the suit property with the consent of the defendant for over forty (40) years as claimed. The defendant also denied that he had on 31st May 2008 or at any other time entered into an agreement for sale with the plaintiff in respect to the suit property at a consideration of Kshs. 280,000. 00. The defendant also denied ever receiving a sum of Kshs. 242,000. 00 from the plaintiff and that there is a sum of Kshs. 38,000. 00 due and payable by the plaintiff to the defendant as claimed in the plaint. The defendant denied further that the plaintiff is entitled to be registered as proprietor of the suit property on account of adverse possession and termed the plaintiff’s suit misconceived and fatally defective.

In his counter-claim, the defendant averred that in or about the year 2000 the defendant leased to the plaintiff the suit property at an annual rent of Kshs.3,000. 00 until the year 2006 when the defendant advertised the suit property for sale and requested the plaintiff to vacate and handover the suit property to the defendant. The defendant averred that despite the said demand, the plaintiff has ignored, neglected and/or refused to vacate the suit property and has to date unlawfully and without any justifiable cause remained in occupation thereof cultivating the same and denying the defendant quiet and exclusive possession and enjoyment thereof. The defendant therefore sought an order for the eviction of the plaintiff from the suit property and a permanent injunction to restrain the plaintiff from trespassing onto or in any manner whatsoever interfering with the suit property. On 2nd December 2010, the defendant filed an application under Order VI Rule 13 of the old Civil Procedure Rules seeking an order that the plaint filed herein by the plaintiff be struck out and the plaintiff’s suit be dismissed for disclosing no or any reasonable cause of action. The defendant’s application was opposed by the plaintiff who filed grounds of opposition on 25th February 2011.

The defendant’s application seeking the striking out of the plaintiff’s suit was heard by Sitati J. who in a ruling delivered on 26th January 2011 allowed the application and dismissed the plaintiff’s suit. In the said ruling, the court gave the defendant the liberty to set down his counter-claim for hearing. The court found that the plaintiff’s suit was not maintainable in that a suit for a claim to land by adverse possession should have been brought by way of Originating Summons and not by way of a plaint. The defendant’s counter-claim was listed for hearing on 20th February 2014. Although served, the plaintiff did not appear at the trial. Having satisfied myself that the plaintiff was duly served with a hearing notice, I allowed the defendant to proceed with the hearing of his counter-claim. In his evidence, the defendant testified that the plaintiff is his elder brother and that he (defendant) is the registered proprietor of the suit property. The defendant stated that the suit property was allocated to him by his father who had at the same time allocated a parcel of land known as LR No. West Mugirango/Bonyamatuta/113(Plot No. 113) to the plaintiff. The defendant stated further that Plot No. 113 was subsequently subdivided and the plaintiff remained with the portion thereof known as LR No. West Mugirango/Bonyamatuta/2406(Plot No. 2406).

The defendant produced as an exhibit the certificate of official search in respect of Plot No. 2406 to prove that the said parcel of land is registered in the name of the plaintiff. The defendant stated that he moved from West Mugirango and settled at Manga Settlement Scheme on a parcel of land that was owned by his father. The defendant stated that in view of the fact that he was not utilizing the suit property he leased the same to the plaintiff. Subsequently, he moved from Manga Settlement Scheme and settled at Bonchari where he had purchased his own parcel of land. After moving to Bonchari, he asked the plaintiff to vacate the suit property to enable him sell the same. On being asked to vacate the suit property, the plaintiff decided to file this suit against him. The defendant stated that the plaintiff is not residing on the suit property but only carrying out cultivation thereon. The defendant produced as an exhibit a copy of the title deed for the suit property to prove that the same is registered in his name. The defendant urged the court to enter judgment for the defendant against the plaintiff as prayed in the counter-claim. The defendant did not call any witness.

After the close of the defendant’s testimony, the defendant’s advocate Mrs. Asati informed the court that the defendant wished to rely entirely on the evidence on record and urged the court to enter judgment for the defendant as prayed in the counter-claim. I have considered the pleadings filed herein and the evidence adduced before me by the defendant. Since the plaintiff’s suit was dismissed on 26th January 2011, what is before me for determination is the defendant’s counter-claim. As I have stated at the beginning of this judgment, the defendant’s claim against the plaintiff is for an order of vacant possession of the suit property. The defendant stated in his evidence that he had leased the suit property to the plaintiff sometimes in the year 2000 at an annual rent of Kshs.3,000. 00 upto the year 2006. The defendant told the court that in the year 2006 he asked the plaintiff to vacate and handover possession of the suit property because he wanted to sell the same. The defendant told the court that the plaintiff refused to move out of the suit property and instead brought this suit against the defendant. The defendant testified that the plaintiff has his own parcel of land which is separate and distinct from the suit property.

The defendant placed in evidence a copy of the title deed for the suit property in the name of the defendant. The defendant also produced in evidence certificate of official search for Plot No. 2406 which shows that the same is registered in the name of the plaintiff. There is no dispute therefore that the suit property is registered in the name of the defendant and that the plaintiff owns another parcel of land distinct and separate from the suit property. The plaintiff did not file a defence to the defendant’s counter-claim neither did he appear in court to cross examine the defendant in his evidence. The defendant’s evidence was therefore not controverted. The defendant having proved that he is the proprietor of the suit property and that the plaintiff is occupying the same without his consent or authority, the plaintiff is in law a trespasser on the suit property having failed to give any justification for his continued occupation of the suit property.

In the circumstances, it is my finding that the defendant has proved his claim against the plaintiff on a balance of probability. Under section 24 of the Land Registration Act, 2012, the defendant is accorded by virtue of his registration as the proprietor of the suit property the absolute ownership of the suit property together with all rights and privileges associated with such ownership. Among the rights and privileges that a registered owner of land has is a right to have exclusive possession of the land. This is a constitutional right guaranteed under Article 40 of the Constitution of Kenya. The defendant can only be dispossessed of his land through his consent or after following the due process of law. The plaintiff has not challenged the defendant’s evidence that he is in occupation of the suit property without the defendant’s consent. The plaintiff has also not placed any evidence before the court to show that he has any lawful justification for occupying the suit property.

This being the case, the plaintiff must be taken to have dispossessed the defendant of the suit property unlawfully and as such the defendant is entitled to possession thereof. I therefore enter judgment for the defendant against the plaintiff as prayed in the counter-claim dated 10th May 2010. The plaintiff shall vacate and handover possession of the suit property to the defendant within sixty (60) days from the date hereof and in default the defendant shall be at liberty to apply for a warrant for the eviction of the plaintiff from the suit property. The defendant shall have the costs of the counter-claim.

Delivered, signedanddatedatKISIIthis 11th dayof July, 2014.

S. OKONG’O

JUDGE

In the presence of:-

Mr. Nyatundo h/b for Mrs. Asati for the plaintiff

N/A for the defendant

Mr. Ombasa Court Clerk.

S. OKONG’O

JUDGE