[2017] KEHC 2715 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND CASE NO. 154 OF 2013.

ISHMAEL BUSOLO WATUKO........................................PLAINTIFF

VERSUS.

JOSEPH BUSOLO................................................1ST DEFENDANT

FRANCIS BUSOLO...............................................2ND DEFENDANT

PYTHIAS WAFULA WESONGA..........................3RD DEFENDANT

PIUS BUSOLO WESONGA.................................4TH DEFENDANT

JUDGEMENT.

Background:

[1]. On the 16th October, 1995 one Ramadhan Wanyonyi Busolo filed an Originating Summons in the High Court at Bungoma against Joseph Busolo, Francis Wesonga, Pythias Wafula Wesonga and Busolo Wesonga. He wanted the Court to decide whether he has been in open continuous, peaceful and exclusive and in adverse possession of part of land parcel E. Bukusu/S. Kanduyi 3877 for a period of 12 years and whether he is entitled to be registered as proprietor of part of aforesaid land parcel under the limitations of actions Act. In paragraph 14 of his Supporting Affidavit he had wanted to be registered as proprietor for 4 acres.

[2]. This Originating Summons was struck out by the Court on 27th May, 2013 after a Preliminary Objection was raised by counsel for the respondent since the documents were filed out of time and no documents or Witness Statement were filed within the time allocated.

[3]. After the above dismissal, the respondents filed Bungoma High Court Civil Case No. 54 of 2004 which was later transferred to the Chief Magistrate’s Court as Case Number CM. C.C. 756 of 2010 seeking the eviction of the applicants father. This case is still pending in the magistrate’s court because of the demise of the applicants father.

[4]. Ishmael Busolo Watako, then filed this amended Originating Summons on 17/6/2013 as the administrator and legal representative of the Estate of Joseph Busolo now deceased. This time the questions he wanted determined were whether or not the applicant has been in occupation of land parcel originally known as East Bukusu/South Kanduyi/3877 and now known as East Bukusu/South Kanduyi/11421, 11422, 11423, 11424 and 11425 openly, continuously, exclusively and peacefully for a period of over 12 years and whether or not the respondents title had been extinguished by operation of law and whether the applicant should be registered as the owner of those parcels of land.

[5]. That Gabriel Wesonga Busolo died, and a Succession in 1982 for Land Parcel Number East Bukusu/South Kanduyi/495, Parcel East Bukusu/South Kanduyi/ 3877 was registered in the names of Joseph Wesonga Busolo and that after confirmation of the grant, Parcel 3877 was Subdivided many times and subsequently into East Bukusu/South Kanduyi/11421, 11422, 11423, 11424 and 11425 in the names of Pius Busolo (deceased) Pythias Wafula Wesonga, Francis Busolo Wesonga and Joseph Busolo (now deceased) respectively.

The evidence:

[6]. Ishmael Busolo Watuko told the court that he is church pastor and that Ramadhan Wanyonyi Busolo is his father. That he died on 31/10/2010. He produced a death Certificate. He said that the respondents were his Cousins. Children of Benjamin Wesonga Busolo who was his father’s Step bother. He said the respondents were registered on 25/5/77 as owners of parcel 3877 which was a subdivision of 2689. He testified that they lived on the land and occupied about five (5) acres. That they have lived there since birth. That he had 3 sisters and 3 brothers all born on the land. He stated that the land parcel 3877 was subdivided in 1984 and became 6854 and 6855. That parcel 6854 was 2. 88 hectares and in the name of the defendants. The same was subdivided into 6880 and 6881. That 6880 was subdivided into 9703 and 9704. The witness said that 9703 was then sub-divided into 9826, 9827 and 9828. Parcel 9826 was subdivided into 9953 and 54. That parcel 9953 was subdivided into 10191 and 10192. Parcel 10191 was subdivided 10424 to 10427. He said that he claimed the five titles 11421, 11423, 11424 and 11425. He produced green cards for those subdivisions. The witness said his father was buried on the land and that the land was subdivided when they were there on the land. He stated that they did not know the land was being subdivided and that they learnt the same from the land office. He stated that his mother is on the land and that she is called LUCIA NAKUMICHA WANYONYI. He said that they have built on the land and planted food crops on the land. He produced photographs to establish his claim. He told the court that his father filed a case in Bungoma High Court Number 162 of 1995 for similar claims. That the case was struck out because there was no annexture of a green card. He said that the respondents sold certain portions of the land but they had not sold the portion they were sitting on. That they were living on approximately five (5) acres.

[7]. The applicant called a witness one Wamalwa Bundu Otuko ID. 0131804 born in 1943. He said that his father was called Bundu Otuko who had five sons;

1. BENJAMIN WESONGA BUSOLO

2. HASSAN BUSOLO

3. WANYONYI RAMADHANI BUSOLO

4. MIKISI BUSOLO

5. BUKEMBA BUSOLO

He said therefore that the sons of Busolo Otuko traditionally were his brothers by another father. He went on to say Benjamin had land near Nakumatt, that he died before the witness was born. And that there are two families living there. The children of Benjamin (the respondents) near the road and next to Nakumatt Bungoma and the family of Ramadhan Wanyonyi (applicant) near the river. He said that he does not know the acrages but that it is about five acres. He said that the wife of Wanyonyi Nakumicha live on that land and that the children of Ramadhan have homes there and have planted crops therein.

[8]. On cross examination by learned counsel Mr. Kisuiya he said that Ramadhan Wanyonyi lived there with a wife called Nakumicha. He said that he also knew Mary Mbungwa. He said that he knew her. That she was the wife of Benjamin. That after Benjamin died she was inherited by Ramadhan Wanyonyi. That the said Ramadhan Wanyonyi had his home at Uwanja ya Ndege. That he left the land for the land near Nakumatt because he was not feeling well. He said that he did not know the year but when he left Uwanja ya ndege for the land at Nakumatt the witness was an adult.

[9]. The respondents case was made out by Pythias Wafula Wesonga. He said that he is a retired teacher. He told the court that Gabriel Wesonga was his father and was the owner of East Bukusu/South Kanduyi/495 and had five sons;

1. JOSEPH BUSOLO WESONGA

2. PYTHIAS WAFULA WESONGA

3. PIUS BUSOLO WESONGA

4. FRANCIS BUSOLO WESONGA

5. DAVID BUSOLO WESONGA

He said that they all live on the land. He further said that Ramadhan Wanyonyi is a paternal brother to his mum. He said he knew Ishmael Busolo who is the son of Ramadhan and that the family of Ramadhan is on the land illegally. That Ramadhan came to live on the land when he came to inherit their stepmother called Mary Njanjala Mbunyua in 1978 after the death of his father. That he was staying at Soko village at the airstrip in Bungoma. He said that Ishmael constructed a house for their Stepmother and started living on the land and then started to transfer his family. He said that they sounded the administration through the Assistant Chief, Chief of the Township and Sub-location. Eventually the matter was not resolved. They took it to the Chief Kanduyi Division. The said Ramadhan disputed and did not move out. They consequently filed a case in Court No. 114 of 1981 in Bungoma. The matter was referred to the Land Disputes Tribunal and it is still pending. That after the tribunal did not resolve the case, Ramadhan filed the case against the respondents in the High Court No. 162 of 1995. That that case was dismissed in 2013. The witness further said that they had filed a Succession case in 1982 for their fathers estate and the grant was given to Joseph Busolo now deceased. After they obtained that grant they filed a case to eviction against Ramadhan in land case No. 786 of 2010 in Bugoma. That the case is still pending since Ramadhan passed away. He stated, that in the Succession case there was no objection because Ramadhan and his family were not beneficiaries. That Ramadhan died in the disputed land. That they objected his burial on the suit land by filing a case in Court, but before they obtained the court orders, they found out that they had already buried him. The repondents then filed a case for exhumation case No. 785 of 2010 and the case is still pending in court at Bungoma. He stated that the sons of Ramadhan have built houses on the land illegally despite being barred from doing so by the orders of Anne Omollo – J. on 1st August 2013. That after Succession, they came up with five titles East Bukusu/S. Kanduyi 11421 – 11425 he said he wanted the court to evict them.

[10]. That being the case of the applicant and the reply of the respondent, has the applicant made out a case for adverse possession as prayed?

In Kasure Vs Mwaani Investments Ltd & 4 Others (2004) KLR 184 Page 188the court of Appeal stated

“In order to be entitled to land by adverse possession, the claimant must prove that he has been in exclusive possession of land openly and of right and without interruption for a period of 12 years, either after dispossessing the owner by discontinuation of possession by the owner on his own valuation ”

From the evidence adduced in this case, it is evident that there has been many disputes and cases about the suit land between the parties herein. The respondents filed in the Magistrates Court Civil Case No. 114 of 1981 to evict the applicant who they alleged had come in 1978 to inherit their step mother and who had started moving his children to the suit land. The case was transferred to the land disputes tribunal, the case is still undecided. The applicant himself filed a case for adverse possession in High Court Civil Case No. 162/95. This case was struck out by this Court in 2013. The respondents who had filed a Succession Cause in 1982 for the father the registered proprietor, filed a case in the High Court No. 786 of 2010 for eviction of the applicant. The case is still pending in court. It is therefore apparent that the occupation of the applicant was interrupted on several occasions. Some of the cases are still pending in Court. Land parcel East Bukusu/South Kanduyi/3877 is the land the applicant and the respondent all claim to occupy. This land has been subdivided several times and title was closed on Subdivision on 29/12/94. Parcel No. East Bukusu/South Kanduyi/2689 was also closed on subdivision on 25/8/87 and Parcels 3877 and 3878 were created. Various other titles 6854, 6880 – 6881, 9703, 9826, 9827, 9826, 9953, 10191 – 10192 and 10424 – 10427 were created. Some of those plots have since been sold to people who are not parties to the suit. There was no evidence lead before me to show that the alleged occupation by the applicants had never changed and that it was not interrupted. It is worth of note that all these Sub-divisions that happened at various times on a piece of land occupied by the applicant and his family, there was no attempt by the applicants to either apply for an injunction to Court and or place a caution or restriction in the land office at Bungoma.

[11]. The evidence by applicant is that the suit land was ancestral land previously owned by their grandfather and that it was bound to be registered in the names of Wesonga Busolo (deceased) and Ramadhan Wanyonyi Busolo (deceased) but it was registered in the name of Wesonga Busolo. Ramadhan Wanyonyi Busolo filed Bungoma HCCC No. 162 of 1995 of adverse possession. In his affidavit in support of the Originating Summons he states;

7. That during Land adjudication my step brother Wesonga Busolo did register the whole of the said parcel of land in his own name and did not bother about ourselves.

8. That I have stayed in this parcel of land since 1924 todate.

9. That when the sons of my Step mother succeeded the estate of their father they sought to evict me from the said parcel of land vide Bungoma Senior Principal Magistrate Court Civil Suit No. 114 of 1991.

It is apparent that Ramadhan Wanyonyi Busolo, knew his brother was dead. That he had registered the suit land, part of which he claimed, in his name. He was aware that the sons of Wesonga Busolo (his step brother had filed a Succession Case to succeed his (Wesonga Busolo) land. This land included the portion he claimed in Bungoma H.C.C. 162 1995. This is the land subject matter in this case. It is a mystery why no one has moved the Succession Court to annul the grant issued to the respondents herein since the evidence adduced in that case and in this case is of entitlement of half share from his fore fathers. His evidence is that he was born on the land and the evidence of his children in this case is that of entitlement through his parents. The evidence is that the applicant and his father are permitted to be there through permission of their parents. The applicant and his father then cannot be trespassers. The evidence on record shows that the land was adjudicated on when both Ramadhan Wanyonyi Busolo and Wesonga Busolo were adults. It is not explained why Ramadhan Wanyonyi Busolo who claims to have lived on this land since birth and who claims a portion of five acres of the same did not complain to the adjudication Committee. The only reason I can think of is that he moved out of his land at Kiwanja ya Ndege to the disputed land after Wesonga Busolo died to inherit his wife and then moved his family therein as alleged by the respondent. Indeed, the evidence of Wamalwa Bundu Otuko called by the applicant and a cousin of the parties, was that after Benjamin (father of respondents) died Ramadhan Wanyonyi inherited Mary Mbunywa. That Wanyonyi had his home at Uwanja Ya Ndege. That he left his land and came to the suit land because he was unwell and he then later moved his family to the suit land.

The findings:

[12]. After evaluating the evidence by the applicant. I am unable to find that the applicant was in exclusive possession of the land. The occupation of the applicant has been interrupted several times by the cases I have discussed herein. I am not by virtue of the evidence adduced herein, able to say that the applicant has dispossessed the respondents. They have not at all discontinued possession of the owners. The owners have time and again subdivided the land and further subdivided the resultant parcels and sold others. The pieces claimed by the applicants are in the names of the respondents. There was no evidence to convince me that these five plots are where the applicant and his family lives and not in other subdivisions of the original land parcel East Bukusu/South Kanduyi/3877. It was not explained to Court why the Succession case filed in 1982 by the respondents to acquire land parcel East Bukusu/South Kanduyi/3877 belonging to their father was not challenged by the applicant and his father particularly when they were aware of such a cause.

In view of the aforesaid. This court is unable to answer question 1, 2 and 3 on the positive. For the avoidance of doubt this originating summons is dismissed as not meeting the threshold required for adverse possession. The case for eviction is still pending in this case. That case will be decided on merits when it is fixed for hearing by the parties.

As the parties herein are members of the same large family I will not order any costs. Each party shall bear their own costs.

Judgement read in Open Court in the presence of Counsel.

Dated at Bungoma this 4thday of October, 2017.

S. MUKUNYA

JUDGE.

In the presence of:

Court Assistant: Chemutai/Joy

Mr. Murunga for M/s Mumalasi for the defendant

M/s Wanjala for J.S. Khakula