[2021] KEELC 3962 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 92 OF 2017

HENRY SUMBA OKUTOYI....................................PLAINTIFF

VERSUS

AMINA AMBETSA..................................................DEFENDANT

JUDGEMENT

The plaintiff avers that he is the sole absolute registered owner of land parcel LR. No. E. Wanga/Isongo/4159 measuring 0. 80 Ha designated on map sheet No. 10 & 11. The defendant without any justifiable reason has encroached onto the plaintiff’s aforesaid land and is interfering with the plaintiff’s peaceful use and occupation of his aforesaid parcel of land by constructing a house on the aforesaid parcel of land. The plaintiff avers that the defendant has continued to deny him the peaceful use and occupation of his parcel of land. The plaintiff further avers that the defendant’s actions are illegal and without any colour of right and an act of trespass as the defendant has no right or interest, purchaser or beneficiary or otherwise on the plaintiff’s aforesaid land. The plaintiff therefore seeks for an eviction and a permanent injunction against the defendant, her agents, servants and or employees from interfering with his peaceful use and occupation of land parcel LR. E/Wanga/Isongo/4159. The plaintiff prays for judgment against the defendant for

1. An eviction order against the defendant her family to be evicted from land parcel L.R. E. Wanga/Isongo/4159.

2. Permanent injunction against the defendant, her family, agents, servants and/or employees or any other person claiming on his behalf, restraining them from interfering with the plaintiff’s use and occupation of land parcel LR. E/Wanga/Isongo/4159.

3. Costs of this suit.

The plaintiff testified that the defendant bought a different parcel of land and has now trespassed on his land.

The defendant denies having encroached onto the suit parcel and allegedly interfering with the plaintiff’s peaceful use and occupation and conversely avers that at all material times her husband Hassan Masayi Dondi (deceased), her 4 co-wives, their children and her have been in occupation of the suit parcel since sometime in the 1950s way before when she was married as a second wife to her late husband in 1967 as bona fide purchasers for value. The defendant avers that the plaintiff’s grandfather, Thomas Chisakane Wakhungu alias Olukwo Wakhungu (deceased) and her late husband Hassan Masayi Dondi (deceadsed), entered into a land sale agreement for the sale of 4. 2 acres of land parcel number East Wanga/Isongo/410 for a consideration of Ksh. 2,500/= sometime in the 1950s which subdivision they later began sometime in 1985. The intended subdivision was to give rise to Land Parcel number East Wanga/Isongo/1280 and land parcel number East Wanga/Isongo/1281. The defendant further avers that pursuant to the sale agreement her deceased husband and the plaintiff’s late grandfather began the process of transfer and subdivision by signing transfer forms in favour of the defendant’s deceased husband’s portion being land parcel number East Wanga/Isongo/1281 which process was unfortunately not completed due to the plaintiff’s grandfather’s untimely death on the 19th January, 1992. The defendant avers that her deceased husband, her co-wives, their children and her have been in occupation of the suit property since execution of the sale agreement in the 1950s with the express consent of the plaintiff’s grandfather and do reside in that parcel to date. The defendant further avers that she later discovered that after the death of her late husband on 10th November, 2007 the plaintiff’s father one Jackson Okutoyi Olukwo, and his two uncles Francis Olukwo Wakhungu and Danson Olwichi proceeded to conduct succession of the estate of the plaintiff’s late grandfather without the defendant and other beneficiaries’ knowledge and consent and later subdivided the suit property into 20 parcels. The defendant avers that her step son Alfajiri Musa Maasai filed an application for annulment of grant in Succession Cause No. 92 of 2000 which application is now pending before the High Court Kakamega. The defendant avers that she and her deceased husband erected structures on the suit property where she and the other beneficiaries of her late husband’s portion reside to date and they will therefore suffer irreparable harm in the event that the court does not grant the orders sought herein. The defendant prays that the plaintiff’s suit be dismissed with costs and judgment be entered for in favour the defendant as follows:-

1. An order dismissing the suit.

2. An order for specific performance compelling the plaintiff and the administrators of the estate of his late grandfather to include the defendant and the other beneficiaries/administrators in the estate of her late father’s estate as bonafide purchasers for value and to transfer the requisite portion of land parcel number East Wanga/Isongo/410 into the plaintiff’s name.

3. A permanent injunction against the plaintiff, his agents, servants and representatives from trespassing into the suit property.

4. That the plaintiff be ordered to pay the costs of this proceeding.

This court has carefully considered the evidence and submissions therein. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

Section 26 (1) of the Land Registration Act states as follows:

“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –

a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except – On the ground of fraud or misrepresentation to which the person is proved to be a party; or Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLR where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The Judge in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows:-

“--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.”

It is a finding of fact the plaintiff is the registered proprietor of Land parcel No. E. Wanga/Isongo/4159. The plaintiff testified that the defendant without any justifiable reason has encroached onto the plaintiff’s aforesaid land and is interfering with the plaintiff’s peaceful use and occupation of his aforesaid parcel of land by constructing a house on the aforesaid parcel of land. The defendant avers that the plaintiff’s grandfather, Thomas Chisakane Wakhungu alias Olukwo Wakhungu (deceased) and her late husband Hassan Masayi Dondi (deceadsed), entered into a land sale agreement for the sale of 4. 2 acres of land parcel number East Wanga/Isongo/410 for a consideration of Ksh. 2,500/= sometime in the 1950s which subdivision they later began sometime in 1985. The intended subdivision was to give rise to land parcel number East Wanga/Isongo/1280 and land parcel number East Wanga/Isongo/1281. The defendant further avers that pursuant to the sale agreement her deceased husband and the plaintiff’s late grandfather began the process of transfer and subdivision by signing transfer forms in favour of the defendant’s deceased husband’s portion being land parcel number East Wanga/Isongo/1281 which process was unfortunately not completed due to the plaintiff’s grandfather’s untimely death on the 19th January, 1992. The defendant avers that her deceased husband, her co-wives, their children and her have been in occupation of the suit property since execution of the sale agreement in the 1950s with the express consent of the plaintiff’s grandfather and do reside in that parcel to date. The defendant further avers that she later discovered that after the death of her late husband on 10th November, 2007 the plaintiff’s father one Jackson Okutoyi Olukwo, and his two uncles Francis Olukwo Wakhungu and Danson Olwichi proceeded to conduct succession of the estate of the plaintiff’s late grandfather without the defendant and other beneficiaries’ knowledge and consent and later subdivided the suit property into 20 parcels. The defendant avers that her step son Alfajiri Musa Maasai filed an application for annulment of grant in Succession Cause No. 92 of 2000 which application is now pending before the High Court Kakamega (DEx3 are the summons dated 23rd February 2010). This matter is still pending. I find that this matter has been brought to court prematurely as it was filed in 2017 before the conclusion of the proceedings of the revocation of grant. This matter is sub judice High Court Kakamega Succession Cause No. 92 of 2000. Section 6 and 7 of the Civil Procedure Act Cap 21 provides as follows:

Section 6.

“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigate under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”

Section 7.

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

For these reasons I find that this matter is sub judice High Court Kakamega Succession Cause No. 92 of 2000 between the same parties and concerning the same subject matter. For those reasons this suit and counter claim are struck off with no orders as to costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 24TH MARCH 2021.

N.A. MATHEKA

JUDGE