[2014] KEELC 489 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E&L NO. 991 OF 2012

Formerly HCC 207/2012

JOHN BURETT MUREI & 3 OTHERS....................PLAINTIFFS

VS

SAWE TANUI CHELAGAT .....................................DEFENDANT

JUDGMENT

This suit was commenced by way of Originating Summons taken out pursuant to the provisions of Order 37 Rule 8 and 14, of the of the Civil Procedure Rules and Sections 66, 68 and 107 of the Land Registration Act, No. 3 of 2012. The applicants whom I will refer to as the plaintiffs, want determined the following questions which I have paraphrased :-

1. Whether land parcel Nandi/Mogobich/Kibabet Block 1/50 (the suit land) prior to registration in the defendant name belonged to the late Cherigat Siron.

2. Whether the late Cherigat Siron had purchased shares worth Kshs. 300/= from Kipkoror Farmers Co-operative Society so as to obtain the suit land.

3. Whether the defendant registered the suit land in his name using dubious or fraudulent means.

4. Whether it should be declared that the defendant is holding the suit land in trust for the plaintiffs.

5. Whether the defendant should be compelled to divide the suit land equally to the plaintiffs.

6. Whether the plaintiffs are entitled to costs of the suit.

The four plaintiffs and defendant are sons of the late Cherigat Siron. In the supporting affidavit to the O.S, it is deponed that the late Cherigat Siron (Cherigat) purchased shares from Kipkoror Farmers Co-operative Society (Kipkoror FCS) equivalent to 9 acres. It is stated that Cherigat paid Kshs. 300/= for the shares on 28th August 1978. Cherigat died on 23 February 1990 before being issued with the title deed. It is deponed that before his death, Cherigat had given instructions to the defendant to follow up on the issuance of the title deed. After the death of Cherigat, the plaintiffs aver that they went to the Ministry of Lands and it is then that they discovered that the defendant had obtained title in his name. The plaintiffs then referred the dispute to the Land District Tribunal where their mother Jeptum Taprandich Siron (now deceased) was the complainant. The decision of the tribunal was however quashed as the high court held that the tribunal did not have jurisdiction. It is for that reason that the plaintiffs have filed this suit.

The defendant filed a Replying Affidavit to the Originating Summons and denied all the allegations of the plaintiffs. He contended that he is the absolute owner of the suit land and that the plaintiffs have no right to demand a share of property that he bought with his own money. He has denied having had the property registered in his name by fraud and has averred that he bought the suit land.

It was agreed by the parties that the matter ought to proceed by way of viva voce evidence.

PW-1 was the first plaintiff John Bureti Murei. He testified that the suit land was owned by their late father, Cherigat. The history of the land as provided by PW-1 was that the land was originally part of what was owned by Kibobet Tea Factory. Cherigat was an employee of the tea estate. The owners of the tea estate made a decision to distribute the estate to the workers who were supposed to buy the land. PW-1 stated that Cherigat paid Kshs. 300/= on 28 August 1978 which entitled him to 9 acres. He identified the receipt of Kshs. 300/=. He stated that Cherigat then moved to occupy the 9 acres. Cherigat then died on 23 February 1990. By that time, he had not yet obtained the title deed. The plaintiffs then gave the defendant, who is the first born, the responsibility of following up the title. PW-1 stated that they trusted that the defendant will obtain title in the name of Cherigat. When they called a meeting in 1999 to find out the progress, the defendant told them that the land belongs to him and that he has title to the same. The plaintiffs then discovered that the defendant had merged what he owned, with what the plaintiffs state their father own, to make up one title of 18 acres which comprises the suit land. PW-1 stated that the defendant is only entitled to 9 acres and that the other 9 acres should be divided amongst all the children of Cherigat who comprise the plaintiffs and the defendant. PW-1 testified that they filed a case before the Land Disputes Tribunal through their mother Jeptum, and the tribunal found in their favour. The defendant appealed to the Appeals Tribunal which again held in favour of the plaintiffs. The decision was however quashed by the High Court. Jeptum died in the year 2010.

Cross-examined by Mr. Aseso for the defendant, PW-1 conceded that the receipt of Kshs. 300 did not show on its face what the payment was for. He however asserted that it was payment for the land. He also stated that the first time they came to learn that the land was in the name of the defendant was in the year 1999. It also emerged in cross-examination that PW-1 owns and resides in a separate parcel of land in a different area which he stated that he bought. So too the second plaintiff. The third plaintiff owns land around the same area as the suit land which he bought independently, whereas the fourth plaintiff resides with the defendant. It also emerged that Cherigat was buried where PW-1 resides. Jeptum on the other hand was buried where PW-2 resides. That was said to have been a decision made by the family.

PW-2 was Kirwa arap Kitur. He testified that he was both member and Treasurer of Kipkoron Farmers Society. It is the Society that was formed to purchase land from Kibobet Tea Estate. Each member was entitled to 9. 8 acres on payment of Kshs. 300/=. PW-2 is the one who wrote the receipt in favour of Cherigat. He stated that there was also a muster roll indicating the names of those entitled to land. He testified that the name of Cherigat was in the muster roll, although the muster roll was not tendered in evidence. He testified that survey was completed in 1990 and henceforth title deeds were being issued.

PW-3 was Kimisik Chumo the third plaintiff. His evidence was more or less similar to that of PW-1.

With that evidence, the plaintiffs closed their case.

The defendant adduced evidence as the sole witness. He testified that he bought the suit land and that the plaintiffs are not entitled to it. He stated that all the plaintiffs have separate land and that it is not true that the suit land belonged to their father. In cross-examination, the defendant denied that Cherigat had bought land from Kibobet Tea Estate. He stated that he bought the land for Kshs. 600/=. He denied that Cherigat had paid Kshs. 300/= for the land and stated that the receipt of Kshs. 300/= tendered in evidence by the plaintiffs was false. He denied that Cherigat was a member of Kipkoror Society. He stated that the 4th plaintiff lives with him with his permission as she looks for her own land.

Upon close of hearing, I invited both parties to file written submissions. Mr. Chemoiyai for the plaintiffs in his submissions, inter alia averred that it has been demonstrated that Cherigat paid Kshs. 300/= and was therefore entitled to 9. 8 acres. He submitted that it has been proved that the defendant holds 9 acres of the suit land in trust for the plaintiffs. He relied on the cases of Peter Mushila Mboyi v Joseph Musoi Amboyi (2006) eKLR; Nyanumba Monubi v Nyansiando Mogoi (1993) eKLR; and Dishon Mudembei & 3 Others v Musangi Asabwa Sabatia & 17 others (2011) eKLR.

In his submissions, counsel for the defendant submitted that the receipt of Kshs. 300/= does not indicate the purpose of the payment. Counsel also pointed out that PW-2 did not come with any documentation to support the allegation that the payment was for land. He stated that the muster roll which was said to indicate the persons and their payments, and to whom land had been allocated to, was never tendered in evidence. He also submitted that it was never proved that Cherigat belonged to Kipkoror Farmers Society. Counsel further submitted that the plaintiffs had to prove that the defendant registered the land in his name fraudulently but that no evidence of fraud was ever tendered. He further contended that trust was not proved. He further averred that the defendant was the first registered owner of the suit land and that his title is indefeasible pursuant to the provisions of Section 143 of the Registered Land Act (CAP 300) (now repealed). As to the proceedings of the land disputes tribunal tendered in evidence, counsel submitted that the tribunal acted without jurisdiction and the court ought to disregard the same.

It is with the above pleadings, evidence, and submissions that I need to determine this suit. First, it should be appreciated that the case of the plaintiffs is based on trust. They are not claiming this land on behalf of the estate of the late Cherigat. If that were the position, then they first ought to have obtained letters of administration on behalf of the estate of the late Cherigat. The evidence tendered, to me, alludes more to an allegation of fraud, meaning that the plaintiffs' claim ought to have come as a claim for the estate of the deceased, rather than a claim for trust. On that point alone, I would be entitled to dismiss this suit.

Even if I was to assume that the case is properly one of trust, I am still not convinced from the evidence that trust has been proved. The burden of proving the alleged trust is on the plaintiffs. In support of their contention, they tendered a receipt of kshs. 300/=. I have looked at the receipt. It is dated 28 August 1978. It does not state what that payment is for. PW-2 attempted to state that the payment was for land. He alluded to a muster roll, which he testified shows what each member paid and precisely what land such member was entitled to. Unfortunately the muster roll was never tendered in evidence. I am therefore unable to tell whether the muster roll bears the name of Cherigat, and whether he was allocated 9 acres. The muster roll would also have refuted the allegations of the defendant that he paid in full for the 18 acres that he now holds. The plaintiffs had the opportunity of tendering this evidence but they failed so to do. In my opinion, they have failed to prove on a balance of probabilities that the land owned by the defendant was land that was meant to belong to Cherigat.

I have no evidence before me to show that the defendant obtained the 18 acres by way of fraud. No evidence was tendered to show that the only entitlement that the defendant was to have, was 9 acres and not 18 acres. It was never shown that the defendant combined what he was alleged to be entitled to (9 acres) with what he was not entitled to (the other 9 acres). He who alleges must prove and it befell upon the plaintiffs to prove the allegations of fraud, which in my opinion, they have failed to do.

I am also not convinced that this suit has not been caught up by the Limitation of Actions Act, CAP 22, Laws of Kenya. This suit was instituted on 10 October 2012. The defendant came to be registered as owner of the suit land on 27 July 1999. The plaintiffs in their evidence stated that they became aware of this registration in the same year, i.e, 1999. It will be noted that this suit was filed about 13 years after the defendant got title which is the same period that the plaintiffs had knowledge of the defendant's title. Section 7 of the Limitation of Actions Act, provides as follows :-

S. 7 Actions to recover land

An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

S. 20 Actions concerning trust property

(1) None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action—

(a) in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.

(2) Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued: Provided that the right of action does not accrue to a beneficiary entitled to a future interest in the trust property, until the interest falls into possession.

(3) A beneficiary against whom there would be a good defence under this Act may not derive a greater or other benefit from a judgment or order obtained by another beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.

It will be seen from the above, that the limitation period on actions to recover land is 12 years. Actions to recover trust property need to be brought within 6 years. This suit was filed 13 years after the cause of action accrued and it has not been demonstrated that the plaintiffs were under any disability that would entitle them to an extension of the limitation period. In my view, and considering the above provisions of the Limitation of Actions Act, this suit was filed out of time.

Although the plaintiffs succeeded before the tribunal, those proceedings are a nullity as the tribunal did not have jurisdiction. That decision can not guide this court in any way. This court has mandate to evaluate the evidence tendered before it and determine whether it supports the pleadings. In my view, the evidence tendered by the plaintiffs does not support their pleadings and the plaintiffs have failed to prove their case. Moreover, this suit was filed out of time. I have little option but to dismiss the same.

That leaves me with the issue of costs. Costs are at the discretion of the court as provided for by Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya. I note that the plaintiffs herein are siblings with the defendant. The 4th plaintiff indeed resides with the defendant. I think, so as not to sour their relationship any further, it is best, in the circumstances of this case for each party to bear his/her own costs.

The final order therefore is that this suit is hereby dismissed but with no orders as to costs.

It is so ordered.

DATED AND DELIVERED AT ELDORET THIS 5TH DAY OF FEBRUARY 2014

JUSTICE MUNYAO SILA

ENVIRONMENT AND LAND COURT AT ELDORET

Delivered in the presence of:

Mr. G.K. Chemoiyai present for the plaintiffs.

Mr. H.O. Aseso present for the defendant.