[2017] KEELC 691 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC CASE NO.723 of 2015

[FORMERLY HCC NO.65 OF 2004]

GILBERT AGENGO OWINO.......................................................PLAINTIFF

VERSUS

EZEKIEL OTIENO AHONO ............................................1ST DEFENDANT

PAUL AINGA AHONO....................................................2ND DEFENDANT

JUDGMENT

1. Gilbert Agengo Owino,through the plaint dated 12th May 2004 filed on 7th May 2004 seeks for an order of vacant possession and eviction of Ezekiel Otieno Ahono and Paul Alinga Ahono, the Defendants, from East Kisumu/Nyahera/1877. He also prays for general damages for trespass and costs. The Plaintiff avers that he is the registered proprietor of the said land and that on or about January 1996, the Defendants and their family members entered upon the suit land and took possession by constructing houses and doing farming activities without his consent.

2. The claim is opposed by the Defendants through Amended defence and counterclaim dated 14th June 2005 and filed on the 17th June 2005. The Defendants avers that they belong to the same family with the Plaintiff and that the suit land being family land, the Plaintiff holds the title in trust. That they have been on the land for long and not from 1996 and that the claim by the Plaintiff is alternatively time barred. That the issue of trespass by a family member on family land cannot arise and no damages can be ordered. That the 1st Defendant was settled on the land by the late father of the Plaintiff in 1984 and after his death the Plaintiff fraudulently registered the land in his name. That the suit land came from a big parcel of land which had been subdivided in breach of the trust into parcels 1877, 1898, 1897, 542, 789, 2016, 1326 and others. That the Plaintiff is the one who settled the 2nd Defendant on the land and cannot turn around and seek to have him evicted. The Defendants prays that there be a declaration that the Plaintiff and his late father hold East Kisumu/ Nyahera/1877 and the other parcels listed above as trustee for the Defendants and the record be rectified to read the Defendants. That an order be issued that the Defendants had adversely acquired the title to the land and register it in their names. They also pray for costs.

3. The Plaintiff testified as PW1. He called Richard Ainga Olang, Charles Otieno Owino and Gordon Okora who testified as PW2 to PW4 respectively. The 1st Defendant testified as DW1. That at the close of the taking of evidence on the 14th December 2016, the counsel for the parties agreed to file written submissions in 30 days each.. The matter was fixed for mention on the 28th March 2017 but none of the counsel had filed submissions and another mention date was fixed. The counsel for the Plaintiff and Defendant filed their submissions dated 28th March 2017 and 7th February 2017 respectively.

4. The following are the issues for determination by the court;

a) Whether the Plaintiff registration with the suit land is as trustee for the Defendants.

b) Whether the Defendants have been in adverse possession of the suit land, and if so, from when.

c) Whether the Defendants are trespassers on the suit land.

d) Whether the Plaintiff is entitled to damages for trespass, and if so, how much.

e) Who pays the costs.

5. The court has carefully considered the evidence adduced by the parties, both oral and documentary, the pleadings, the written submissions and come to the following conclusions;

a) That from the oral evidence tendered, and the copy of the title deed for East Kisumu/Nyahera/1877 produced as exhibit by the Plaintiff, the land was first registered on 1st August 1980 in the name of Isaac Owino Ainga. The land was subsequently inherited by Gilbert Agengo Owino, the Plaintiff vide Kisumu High Court Succession Cause No.18 of 1998 following the death of Isaac Owino Ainga on the 1st January 1984. The copy of the Grant dated 20th July 1988 and certificate of confirmation of Grant dated 8th March 1989 were produced as exhibits. The title deed in the name of the Plaintiff was issued on the 4th April 2001, as confirmed in the copy of the title and green card exhibited herein.

b) That the evidence availed to the court indicates that the land adjudication and consolidation exercise in the area where the suit land is situated took place around 1969 and 1970. That though the 1st Defendant position is that the suit land was part of a big land that formed the ancestral land, the position is disputed by the Plaintiff who claimed that the land belonged to his late father solely. The Plaintiff position is supported by the evidence of PW2, who testified that it was his late father who had given that land to the father to the Plaintiff long before land adjudication. The court has perused the copy of the suit land’s green card and noted no trust had been noted against the title of the Plaintiff.

c) That when the Plaintiff’s late father had the land registered in his name after Land Adjudication exercise, there is no evidence of the Defendants or any other persons having lodged any objection in accordance with Section 26 and 29 of the Land Adjudication Act Chapter 284 of Laws of Kenya. That the Plaintiff’s late father’s registration with the suit land was a first registration which could not be challenged in terms of Section 143 of the Registered Land Act Chapter 300 of Laws of Kenya [Repealed]. That the title of the Plaintiff’s late father to the suit land do not appear to have been challenged during his life time, and the Plaintiff moved the succession cause as required underthe Laws of Succession Act Chapter 160 of the Laws of Kenya to inherit the suit land. There is no evidence of the Defendants having lodged objection proceedings in the Succession Cause to be provided for under the estate. The Defendants claim that the Plaintiff had processed his late father’s succession cause secretly cannot be true as evidence adduced by the Plaintiff, and confirmed by the Land disputes Tribunal proceedings in case No.12 of 2004 shows that one Francis Olech Sigu, who had testified in support of the claimants, who included the 2nd Defendant herein, had witnessed the Plaintiff’s succession documents.

d) That the Defendants having pleaded trust and fraud had the legal obligation to tender proof. That in support of the defendants case, only the 1st Defendant testified as DW1. The court has noted that DW1 did not offer any evidence to establish fraud in the process through which the Plaintiff got registered with the suit land. The orders and decree issued by the succession court, through which the land was registered in the Plaintiff’s name, have not been challenged. The testimony of the 1st Defendant does not lay the basis on which the court could declare a trust in their favour over the suit land. That the 1st Defendant indicated that he was born in 1949 while the 2nd Defendant had while testifying before the Land Disputes Tribunal gave his date of birth as 1942. That taking those as their correct dates of birth, then they were both of adult ages by the time land adjudication was being carried out in the 1969 and 1970. The Defendants did not explain why their names were left out in the lands register of the suit land if they were meant to have a share. The court finds that the Defendants have failed to establish that the Plaintiff, and his late father before him, were registered with the suit land as trustee for them.

e) That though the Defendants had presented a defence of being on the land as adverse possessors and in their counterclaim, which they do not appear to have offered evidence on, had laid a claim on the land under adverse possession, their pleadings indicated that they had moved onto the land with permission of the registered proprietors. [see paragraph 2, 3, 7, 8, 9B (b), 10B, 10C and 10E (d) of the Amended Defence and counter claim]. That the content of the said paragraphs shows the Defendants to have been in occupation either by right as family members and or with permission of the registered proprietors. These pleadings cannot go hand in hand with a claim on adverse possession which cannot run against one’s own entitlement or where possession or occupation is through a licence or permission.

f) That as confirmed by the evidence of PW2, PW4 and the land disputes Tribunal case proceedings, the Defendants moved onto the suit land on or about 1996. That there has been several unsuccessful attempts through the provincial administration to have the Defendants vacate from the land. That 2nd Defendant and another had lodged the land Disputes Tribunal claim that they lost up to the Provincial Appeals Committee Level. That by then the Plaintiff had also filed this suit in court and all these endeavors confirms that the Defendants were not welcome on the land. That in case the Defendants had moved on the land with permission long before 1996 as they allege, that permission was withdrawn or lapsed in 1996 when the Plaintiff started to ask them to vacate. The Defendants declined and their continued occupation of the land after 1996 became adverse to the title of the registered proprietor. That by the time this suit was filed in 2004, only a period of about eight (8) years had passed from 1996. That accordingly, the defence or claim based on adverse possession over the land is not available to the Defendants as the period of twelve years had not lapsed as required under Section 7 and 17 of the Limitation of Actions Act Chapter 22 of Laws of Kenya.

g) That though the Plaintiff had pleaded for general damages for trespass, there was no evidence adduced to guide the court on its computation. The acreage of the portion of the suit land occupied by the Defendants was not given nor the value of the loss suffered. Further as the parties herein are sharing some distant relations through their grandparents, the court is of the view that an order of vacant possession and eviction in favour of the Plaintiff would suffice. That no award on damages would be made as the Defendants will definitely incur expenses in the process of moving or vacating from the land.

6. That flowing from the foregoing the court finds for the Plaintiff and against the Defendants and issues the following orders;

a) That the Plaintiff has proved his case against the Defendants to the standard required. That accordingly the Defendants are hereby directed to give the Plaintiff vacant possession of land parcel East Kisumu/Nyahera/1877 within 90 (ninety) days and in default eviction order to issue.

b) The Defendants do pay costs to the Plaintiff.

c) That the Defendants have failed to prove their case against the Plaintiff on their counterclaim on a balance of probabilities and their case is dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 29TH DAY OF NOVEMBER 2017

In presence of;

Plaintiff Present

Defendants Absent

Counsel Mr. Kouko for the plaintiff

Mr. Oyuko for the Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017

29/11/2017

S,M. Kibunja Judge

Oyugi/Joane court assists

Plaintiff present

Defendant present

Mr. Kouko for the Plaintiff

Mr. Oyuko for the Defendant

Court: The judgment dated and delivered in open court in the presence of Plaintiff, his counsel Mr. Kouko and Mr.Oyuko for the Defendants.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017