[2021] KEELC 2123 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 4 OF 2015

JOHANA KENGA MRAMBA.......................................................PLAINTIFF

VERSUS

KITSAO ZIRO..............................................................................DEFENDANT

JUDGEMENT

Background

1. By the Plaint dated 7th January 2015, Johana Kenga Mramba [the plaintiff] prays for judgment against Kitsao Ziro [the Defendant] for:

a) Vacant possession of Land parcel number 1162 GIS Magarini [and] in default eviction to issue;

b) Costs of this suit; and

c) Any other relief this court may deem fit to grant.

2. Those prayers arise from the Plaintiff’s position that he is the registered proprietor of the said parcel of land formerly known as Plot No. 530 Magarini/Shauri Moyo settlement Scheme. The Plaintiff avers that sometime in the year 2003, he gave the Suitland to the Defendant to cultivate for food while at the same time caring for it in the absence of the Plaintiff who was going back to his ancestral home in Kaloleni to take care of his ailing wife.

3. The Plaintiff further avers that his wife eventually passed away and that it took him about 10 years to return to Magarini. In that period, the Defendant who is the Plaintiff’s brother- in -law paid for the necessary registration fees for the land on behalf of the Plaintiff but when the Plaintiff required the Defendant to hand over the land, the Defendant declined and demanded to be given half of the land as compensation for taking care of the land.

4. But in his Statement of Defence dated 17th February 2015, the Defendant denies the contents of the Plaint and states that the Plaintiff processed the registration of the suit property in bad faith as he had agreed with the Plaintiff to register the land in his [the Defendant’s] name. The Defendant further avers that due to his tight schedule at work, he had given the Plaintiff money to register the land on his behalf but the Plaintiff instead went to the Land Registry and fraudulently caused the land to be registered in his [the Plaintiff’s] own name.

5. The Defendant denies that the Plaintiff gave him the land in 2003 ads stated. On the contrary, the Defendant asserts that the Plaintiff gave him the land in 1998 as he was relocating to Kaloleni due to his wife’s illness. He asserts that much development has been done on the land since then.

6. The Defendant further avers that the Plaintiff visited him in 2013 and requested for receipts of payment for the land registration but he declined to give the Plaintiff as he had information that the Plaintiff intended to sell the land. He asserts that he is entitled to compensation as he is the one who gave the Plaintiff money to pay for registration of the land and has been taking care of the same since 1998.

The Plaintiff’s case

7. At the trial herein the Plaintiff called two [2] witnesses in support of his case.

8. PW1- Johana Kenga Mramba is the Plaintiff. He told the court that the Defendant is a cousin to his wife the late Grace Kanze. PW1 testified that he is the registered proprietor of the parcel of land known as parcel No. 1162 GIS Magarini and formerly known as Plot No. 530 Magarini/Shauri Moyo Settlement Scheme.

9. PW1 testified that sometime in the year 2003, he gave the land to the Defendant to cultivate for food while at the same time caring for it as he took his wife who was then ailing back to Kaloleni. PW1 told the court that his wife subsequently passed away and due to that misfortune, he was not able to return to Magarini for about 10 years.

10. PW1 told the court that in his absence, the Defendant settled on the land and took over his houses thereon. When PW1 returned and required the Defendant to hand over the land, the Defendant declined and started making unreasonable demands for compensation staking a claim on half of the suit property. PW1 told the court the Defendant is not entitled to any such compensation as he had already benefited from using the land for over 10 years.

11. On cross - examination, PW1 told the court he still did not have a title deed for the land as the adjudication process was on-going in the area.

12. PW2- David Ngowa Saro is a resident of GIS Magarini and a brother - in - law to the Plaintiff. PW2 told the court that the Defendant who is also his cousin used to live with them at Kabiboni before he later moved to GIS. At some point, the Defendant disappeared from home but they later learnt that the had moved to their sister Kanze’s place.

13. PW2 told the court that the Defendant later requested the Plaintiff who was Kanze’s husband to use a portion of their land to grow food. Later on, Kanze was taken ill and the Plaintiff was forced to move back to Kaloleni for purposes of accessing treatment. When Kanze’s husband later returned, he offered 10 acres of the Suitland to the Defendant as a way of thanking him for taking care of the land but the Defendant refused and demanded half of the land.

14. On cross- examination, PW2 told the court he is the owner of Land Parcel No. 7 within the scheme. He had since acquired a title for his parcel which lies about 6km away from the Plaintiff’s land. He further told the court the adjudication process started in the area in the 1980s but he was not sure if the same had been finalized.

The Defence Case

15. The Defendant testified as the sole witness in his case. Testifying as DW1, he told the court that the Plaintiff is his brother-in-law. DW1 testified that way back in1998, the Plaintiff approached him and left for him his parcel of land number 1162 GIS Magarini as the Plaintiff was relocating to his ancestral home to take care of his ailing wife.

16. DW1 testified that before the Plaintiff left, the Plaintiff advised him to register the land at the land registry in his [DW1’s] own names. However, DW1 was at the time busy at his work place and the Plaintiff volunteered to register the land in his own name which name would later be changed to that of DW1. On that agreement, DW1 gave the Plaintiff Ksh. 1000/= which was 10% of the requisite registration fees.

17. DW1 further testified that in 2006, he visited the Land Registry with the Plaintiff with a view of transferring the registration of land to DW1’s name but the Land Registrar informed them it would not be possible until they cleared the remaining balance of Ksh. 7500/= DW1 told the court that he then gave the Plaintiff Ksh. 6000/= to pay at the Registry on the understanding that the balance would be paid later on.

18. DW1 told the court he later paid the balance of Ksh., 7500/= in the Plaintiff’s name. In 2013, the Plaintiff went to DW1 and started demanding for the receipts of payments. DW1 refused to give him as he had heard that the Plaintiff intended to sell the land.

19. DW1further testified that the Plaintiff then promised to give him ten [10] Hectares and that he would then sell the rest. DW1 accepted the after on condition that they put everything in writing at the chief’s office but the Plaintiff declined. DW1 further told the court that his wife was later summoned to the Chief’s office while he was away in Lamu and on being threatened, his wife handed over receipts to the Chief.

20. On cross – examination, DW1 told the court he was occupying another parcel of land when the Plaintiff who is married to his sister left for Kaloleni. The Suitland had then been adjudicated in the Plaintiff’s name. DW1 further told the court the Plaintiff did not give him anything in writing to indicate the Plaintiff had given to him the land and that there were no witnesses to their agreement.

21. DW told the court the land is 30 acres and that when the Plaintiff came back for it, he did not stop him from taking the land. Instead it is the Plaintiff who offered him 10 acres of the land., DW1 told the court he did not decline the offer and that they only disagreed because the Plaintiff did not want the matter reduced into writing.

22. DW1 told the court that while he was the one presently occupying the land, it was not true that he occupied it by force as the Plaintiff had never asked him to leave the land.

23. DW1further told the court that PW2 is his brother. He disputed PW2’s testimony that he had refused to be allocated land during land adjudication. He further told the court he was not ready to leave the land until the Plaintiff paid him his dues.

Analysis and Determination

24. I have carefully considered the pleadings filed by both parties herein, the testimonies of the witnesses and the evidence adduced at the trial. I have similarly perused and considered the submissions by the Learned Advocates acting for the parties.

25. The Plaintiff has come to court seeking orders of vacant possession against the Defendant in respect of all that parcel of land known as LR. No. 1162 GIS Magarini [formerly plot no. 530 Magarini /Shauri Moyo Settlement Scheme] said to be measuring approximately 30 acres.

26. As I understood the dispute, it was not contested that the Plaintiff was properly adjudicated as the proprietor of the Suitland and that since the allotment of the land on 9th December 1997 he has been recognized as the lawful owner thereof. The Defendant’s case is that the Plaintiff left the land for him and that he expended money towards the transfer of the suit property to his name but the Plaintiff subsequently changed his mind and now wants to take the whole parcel of land without compensating him.

27. From the testimonies of all the three witnesses who testified herein, it was common ground that the Plaintiff and his wife the late Grace Kanze as the owners of the land were initially in occupation thereof. As fate would have it, Kanze who is invariably described by the parties as a cousin and/or sister of the Defendant fell ill. While the Plaintiff puts the date of his wife’s sickness as the year 2013, the Defendant insisted that it was the year 1998.

28. Regardless of the date, that sickness forced the Plaintiff to leave Magarini and to move back to his ancestral home in Kaloleni where it was said Kanze would access better treatment. As he was moving away, the Plaintiff told the court that he handed over the suit property to the Defendant as his brother- in –law to cultivate the same for subsistence and to generally take care of the same until such a time that he would come back.

29. As things would turn out however, Kanze never recovered from the illness. Following this misfortune, the Plaintiff told the court he was unable to get back to Magarini for another 10 years. When he did finally get back however, the Defendant declined to hand over the suit property demanding to be given half of the property as compensation for taking care of the land.

30. On his part and other than insisting that the Plaintiff and his wife left the land in 1998, the Defendant had also a slightly varying version as to what transpired as the plaintiff and his family left. According to the Defendant the Plaintiff told him to register himself as the owner of the land. However, since the Defendant was busy at his work place, he bankrolled the Plaintiff to have the title registered in the Plaintiffs name after which they would both have the title transferred to the Defendant’s name.

31. On that account, the Defendant told the court that they went to the Land Registry with the Plaintiff in the year 2006 for the purposes of the transfer but they were advised that they could not do so unless the balance of the registration fee then outstanding in the sum of Ksh. 7500/= were cleared. The Defendant told the court he later paid the amount in full but the Plaintiff thereafter started demanding for the receipts of payment with the intention of selling the land to third parties.

32. The Defendant further told the court that when he refused to give the receipts, the Plaintiff promised to give him 10 acres of the land but the Plaintiff subsequently reneged on the promise and now wants to take back the entire parcel of land without offering him any compensation.

33. From his own testimony given at the trial herein, it was apparent that the Defendant had believed when the Plaintiff left Magarini that he would never return and that the entire parcel of land was thereby being left to him as his own. That sense of entitlement can be discerned from his testimony herein that as at the time the Plaintiff and his wife left, both the Plaintiff and his wife were unwell and were hence returning to their ancestral land.

34. As it were, he conceded during cross – examination that they did not reduce their agreement with the Plaintiff into writing and that there were no witnesses who were present when the Plaintiff gave him the suit property. He did not claim that he purchased the property from the Plaintiff and he readily admitted that the same belonged to the Plaintiff.

35. That being the case, it was difficult to see why the Defendant had refused to vacate the suit property as was demanded by the Plaintiff. While it may be true that he took care of the land in his brother- in-law’s absence, he did not deny that he used the same to accommodate himself and his family while tiling the same for their subsistence.

36. While he claimed to have paid for the transfer, all the receipts produced in court bore the Plaintiff’s name and there was nothing to indicate that the same were paid for by himself. At any rate, there was nothing to show that the entire parcel of land or any portion thereof was being transferred to himself. What is reflected in the receipts produced before the court were payments, made to the Settlement Fund Trustees to secure a discharge of the charge registered by the Fund on the Plaintiff’s land on 27th January 1998.

37. However long his occupation of the land had been, it was clear he had entered the same with the permission of the Plaintiff. He was at best a licensee on the suit property as he had been allowed to live on the land until the time when the Plaintiff returned. He is now abusing the Plaintiffs magnanimity and kindness by forcibly hanging thereto claiming some imaginary compensation from the Plaintiff.

38. In the premises, it was evident that the suit property belonged to the Plaintiff. While the Plaintiff had invited the Defendant to live and take care of the suit property, the Defendant has now overstayed his welcome. It is my finding therefore that the Defendant has no defence to the Plaintiff’s claim other than having an exaggerated sense of entitlement for doing his brother-in-law a good turn.

39. This court is in essence satisfied that the Plaintiff has proved his case on a balance of probabilities. Given the Defendant’s statement at the trial herein that he would not leave the land unless the Plaintiff compensates him, and having found that there was absolutely no basis for the demand for compensation, this court has a duty to help the Plaintiff to eject him therefrom.

40. Accordingly, judgment is hereby entered for the Plaintiff as sought in the Plaint.

41. The Defendant has 45 days from today to vacate the suit property failure to which he shall be evicted therefrom at his own cost.

42. The Plaintiff shall have the costs of this suit.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF AUGUST, 2021.

J.O. OLOLA

JUDGE