[2013] KEHC 1791 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL CASE NO. 185 OF 2009 (OS)

JAIRO ALELA ABUHERI …………………………………… PLAINTIFF

V E R S U S

FILISTER OMUKHENJE MUKUYWA …………... 1ST RESPONDENT

DAMARI ASWANI ……………………………………. 2ND RESPONDENT

J U D G M E N T

In his originating summons dated 8. 12. 2009 the plaintiff would like to be declared as the owner of plot number BUTSOTSO/INDANGALASIA/113 by way of adverse possession. Three witnesses testified for the plaintiff. The plaintiff’s evidence is that he is a pastor in Full Gospel Churches of Kenya. In 1972 he bought a portion of land from the late HENRY BARASA OTERA for KShs.4,000/=. The original title was BUTSOTSO/INDANGALASIA/125 but it was later subdivided into two portions namely 865 and 913. Plot number 913 was later subdivided and created plot numbers 1133, 1134 and 1135. According to the plaintiff the original portion he bought from the original owner is the portion given plot number 1133. Since 1972 he built a house on the land and some trees. In the year 2010 he became sick and went to Nairobi for treatment. He left a caretaker on the land (PW2). While away he was informed that his houses had been demolished and his banana plants uprooted.

The plaintiff further maintains that when Henry Barasa died his son JOHN MUKULWE filed succession cause and the plaintiff was to be one of the beneficiaries. Unfortunately John died before the succession was finalized. The 1st defendant is John’s wife and the plaintiff talked to her about his interest. He came to court with her but when the succession was finalized she sold his portion to the 2nd defendant who is a neighbor. The plaintiff produced the sale agreement for the sale of the land in 1972.

JANE MWANIKA wasPW2. Her evidence is that she was the caretaker left by PW1 to reside on the land. On the 7. 11. 2010 she left the premises to visit her brother at Kimilili. While there she was informed that her children have been locked up in the house and the land has been fenced off. She went there the following day and realized that it was the 2nd defendant and her husband by the name ALEX who had fenced off the plot and cut all the banana plants. According to her the land belongs to the plaintiff. PW3 isAGGREY ASHIROYA. He is the area village elder. It is his evidence that he was born in 1976 and he saw the plaintiff occupying the suit land. in 2009 the 2nd defendant demolished the plaintiff’s house and he went to the site. The 2nd defendant informed him that she had bought the land. PW3 called the plaintiff who was in Nairobi and he informed him that he had not sold the land.

FILISTER OMUKENYE MUKUYWA, the 1st defendant, testified as DW1. Her evidence is that she is the widow of the late John Mukuywa. She does not know the plaintiff. The houses and the banana plants on the suit land were built and planted by her late husband respectively. She does not live on the land but she used to live there with her husband. The specific portion in dispute used to be leased out. She sold the land to the 2nd defendant. The land initially belonged to Henry Barasa who was her father in-law. Her husband did succession but he died in 1998. She took over and later sold that portion of land. She signed an agreement with the 2nd defendant. Her late father in-law had sold a portion of the land to one INGOLO who lives with the 2nd defendant. The 2nddefendant does not reside on the suit land but cultivates it.

The 2nd defendant, DAMARI ASWANI INGOLO, testified as DW2. It is her evidence that she bought the suit land in 2009 for KShs.140,000/= from the 1st defendant. She has since been utilizing the land. She had bought plot number 1135 from the original owner. According to her PW2 used to live on the suit land as a tenant. Other tenants also used to stay on the suit land and leave at their own wish. She does not know the plaintiff. DW3, is IGNATIUS OGUTU. His evidence is that he does not know the plaintiff. The suit land belonged to JOHN MUKUYWA who was the husband of the 1st defendant. He built a house on the land but it is no longer there. There used to be woman who used to live in the house located on the land. Currently it is the 2nd defendant who is utilizing the land. DW4isJAMES INGUTIA. He is a neighbor and knows that the original plot number BUTSOTSO/INDANGALASIA/125 belonged to the late HENRY BARASA. After his death his son JOHN MUKUYWA took over. He knows the 2nd defendant as a neighbor who came to buy the land. the 2nd defendant initially bought land from the late Henry Barasa and built a house there. DW4 later heard that the 2nd defendant had bought another plot from Filister, the 1st defendant. He is aware that PW2, Jane used to live in the house that is located on the suit land.

Parties filed written submissions. The plaintiff contends that he bought the suit land from HENRY BARASA. JOHN MUKUYWA BARASA filed Kakamega High Court Succession Cause No. 100 of 1989 and included the plaintiff as a liability. Before the grant was confirmed John Mukuywa passed on and his wife, the 1st defendant substituted her husband. The 1st defendant fraudulently transferred the plaintiff’s portion to the 2nd defendant. The plaintiff’s counsel relies on the case of GITHU V NDEETE [1984] KLR 776.

Counsel for the defendants submits that the plaintiff has not proved his case. The sale agreement produced by the plaintiff shows that what was purchased was 117 ft. by 108 ft. by 120 ft. The seller was Henry Barasa and the portion sold was comprised in title number BUTSOTSO/INDANGALASIA/125. It is therefore not clear that what was sold is the land in dispute and even the acreage is not known. There is no evidence that the plaintiff has been in continuous occupation and there he has not proved adverse possession. Counsel relies on the case of KENYA TEA DEVELOPMENT AUTHORITY V JACKSON GICHUKI KARANJA & ANOTHER [2006]eKLR.

The evidence on record shows that plot number BUTSOTSO/INDANGALASIA/125 measuring approximately 5 acres was registered in the names of the late BARASA OTELA in 1969. On the 9. 1.1969 the land was subdivided and two portions were created namely BUTSOTSO/INDANGALASIA/865 &866 respectively. Subsequently, plot number 865 was subdivided and created plot number 913 and another portion which is not indicated in the evidence on record. Plot number 913 measuring 0. 49 Ha. was opened on the 6. 11. 1978 and registered in the names of the late BARASA OTERA. In 1985 plot number 913 was subdivided into plot numbers 1133, 1134and 1135. Plot number 1133 is approximately 0. 13 Ha. and was initially registered in the names of HENRY BARASA OTELA on the 28. 3.1985. John Mukuywa Barasa was registered as the administrator of Henry Barasa’s estate on the 14. 12. 1989. The 1st defendant, Filister Omuhenje Mukuywa filed Succession Cause No. 513 of 2005 and was registered on the 3. 11. 2006. The plot was transferred to the 2nd defendant on the 19. 10. 2009 and she was issued with a title deed.

The evidence on record also shows that on the 3. 9.1972 the late Henry Barasa Otela sold a portion of his original plot number 125 to the plaintiff for KShs.4,100/=. It is also indicated in the sale agreement that the late John Mukuywa witnessed that sale. A receipt dated 20. 10. 1973 shows that the seller received the entire purchase price. The evidence also does establish that the plaintiff started utilizing the suit land since 1972 and built a house on the land. It is also confirmed that the late John Mukuywa filed succession cause and intended to give the plaintiff his portion of land. Although the 1st defendant alleged that she does not know the plaintiff, I am satisfied that she knows the plaintiff and only sold the land to the 2nd defendant without taking the plaintiff’s interest into consideration. The defence witnesses do confirm that PW2 was living on the land. There is no evidence that PW2 was placed on the land by the late John Mukuywa. I am satisfied that Jane was put on the land by PW1 and the land belonged to PW1.

The evidence proves that both the late Henry Barasa and John Mukuywa wanted to satisfy the terms of the sale agreement by giving the plaintiff his land. The plaintiff’s claim was therefore a liability on the estate of the late Henry Barasa Otela. The 1st defendant herein failed to honour the sale agreement and purported to transfer the land to the 2nd defendant. The 2nd defendant is also to blame as she was aware that the land belonged to the plaintiff. She bought one of the subdivisions of plot 913 and plot 1133 was already being occupied by the plaintiff. She is not the one who built the houses on plot number 1133 and was aware that Jane (PW2) was living on that land on behalf of the plaintiff. I am satisfied that the plaintiff started occupying the suit land since 1972 and the original owner did not object to his occupation. Similarly, John Mukuywa, did not object to the plaintiff’s occupation of the suit land. The plaintiff’s occupation has been continuous and peaceful since 1972. Although no title had been registered in the plaintiff’s favour, I do find that the 1stdefendant was holding the land in trust for the plaintiff and the transfer to the 2nd defendant does not affect the plaintiff’s interest.

In the end, I do find that the plaintiff has proved his case as required by the law. The plaintiff acquired ownership of plot number BUTSOTSO/INDANGALASIA/1133 by way of adverse possession. I do find that the measurements of 108 by 120 by 117 ft. describing the sale agreement was later translated into plot number 1133. This is the plot the late Henry Barasa wanted to give to the plaintiff in fulfillment of the sale agreement. The transfer of plot number BUTSOTSO/INDANGALASIA/1133 to the 2nd defendant is hereby cancelled and the land shall be registered in the names of the plaintiff JAIRO ALELA ABUNERI. The Deputy Registrar Kakamega Court is hereby authorized to sign all the relevant documents to ensure that the land is registered in the names of the plaintiff. Each party shall meet his/her own costs.

Delivered, dated and signed at Kakamega this 23rd day of October 2013

SAID J. CHITEMBWE

J U D G E