[2017] KEELC 750 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.160 OF 2015

JOSEPH OMOLLO ODAM .....................................................................1ST PLAINTIFF

RICHARD OMOLO OYOO.....................................................................2ND PLAINTIFF

Suing as the administrator of the estate of KONEL ODAM OMOLLO (DECEASED)

VERSUS

JILL AWINO ODINGO.......................................................................1ST DEFENDANT

DOROTHY NEREA OPONDO.........................................................2ND DEFENDANT

FREDRICK ADIWOUR RALAK.......................................................3RD DEFENDANT

JOHN ODHIAMBO AKINY...............................................................4TH DEFENDANT

CHHAGANBHAI MOTIBHAI PATEL................................................5TH DEFENDANT

NICHOLAS RANDA OWANO OMBIJA..........................................6TH DEFENDANT

JOHN ROBERT ODHIAMBO...........................................................7TH DEFENDANT

JOHN ALEX GENGA.........................................................................8TH DEFENDANT

CHARLES OKEYO OGOLLA...........................................................9TH DEFENDANT

HAPPY TWINS FREIGHT FORWARDERS LTD...........................10TH DEFENDANT

DR. THOMAS OTIENO OBAT KWASA........................................11TH DEFENDANT

COUNTY LAND REGISTRAR , KISUMU......................................12TH DEFENDANT

RULING

1. Nicholas Randa Owano Ombija, the 6th Defendant, vide notice of motion dated 2nd May 2017, seeks to have the plaint struck out and costs be provided for. The application is based on the six grounds on its face and is supported by the affidavit sworn by Nicholas Randa Owano Ombija on the 2nd May 2017. The summary of the grounds is that the 6th Defendant had acquired land parcel Kisumu/Konya/3482from Jill Awino Odingo, the 1st Defendant and under Section 39 (1) of the Registered Land Act (repealed), he was not obligated to inquire into the prior transactions over that land as the deal was for valuable consideration. That the Plaintiffs have failed to disclose any cause of action against the Defendants. The 6th Defendant depones to among others that he sold the land to a third party, who has not been enjoined in the proceedings, in 2014.

2. The application is opposed by Joseph Omollo Odam, (suing as the Administrator of the estate of Konel Odam Omollo, deceased), and Richard Omollo Oyoo, the Plaintiffs, through the replying affidavit sworn by the 2nd Plaintiff on the 16th august 2017. The 2nd Plaintiff depones to among others that the suit land was initially Kisumu/Konya/817 registered in the names of Magdalina Olang Chek, Jacob Oyoo Muok and Odama Omolo. That he is a son to Jacob Oyoo Muok. That in the year 1990 Jacob Oyoo Muok and Magdalina Olang Chek agreed to sell to the 1st Defendant a portion of that land which was marked on the ground at Ksh.220,000/=. That the 1st Defendant paid Ksh.85,000/= and made the two vendors thumb print some documents, passing them as acknowledgment for money paid, but which later turned out to be transfer documents. That later the Plaintiffs established that the 1st Defendant had fraudulently transferred the whole land to herself and subdivided it into 12 parcels being Kisumu/Konya/3476 to 3487. That the 1st Defendant transferred 10 of the parcels to the other Defendants leaving parcels 3476 and 3477 in her name. That the signature of Konel Odam Omolo in the transfer documents was a forgery as he was illiterate.

3. The application came up for hearing on the 25th September 2017 when Mr. Ombija for Wasuna for the 6th Defendant and M/S Oketch for the Plaintiffs tendered their oral rival submissions.

4. The court has carefully considered the grounds on the notice of motion, affidavit evidence by both sides, the oral submission by the counsel, the pleadings filed and come to the following determinations;

a) That the suit was commenced through the plaint dated 20th June 2015 and filed in court on the 29th June 2015.

b) That the 1st Plaintiff who is suing as administrator of the estate of Konel Odam Omolo a.k.a Odama Omolo, his late father, and one of the three registered proprietors of the original parcel. He has availed a copy of Grant Ad litem dated 24th April 2015 and issued in Kisumu H.C. Probate and Administration Cause No.185 of 2015. The capacity of the 1st Plaintiff to sue in this suit has not been contested.

c) That the 2nd Plaintiff has sued in his own name and a perusal of paragraph 27 of the plaint shows the basis of his claim over 2. 5 acres of the land he occupies is based on adverse possession. That the objection by the 6th Defendant on the 2nd Plaintiff capacity to sue this suit is therefore not based on the pleadings and has no merit.

d) That prayers (a) and (b) of the plaint are for declaratory orders on the transfer of the original parcel, its subdivision and transfer of the parcels arising therefrom. That prayer (c) is for nullifying the transfer to the 1st Defendant and the subsequent transfer to the 2nd to 11th Defendants. That prayers (d) and (e) are alternative prayers in which the 1st and 2nd Plaintiff prays for orders that they are entitled to ½ share of 1st Plaintiff father’s share to the land and 2. 5 acres of the suit land respectively. That in view of the contents of paragraphs 14 to 27 of the plaint, the court finds that the Plaintiffs have established a cause of action against the 6th Defendant as he is one of the persons to whom a portion of land subdivided from the original parcel 817 was transferred to. That it is only fair and just that the suit be allowed to go to hearing and the issues be decided on merit.

5. That flowing from the foregoing, the notice of motion dated 2nd May 2017 is without merit and is dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 29th DAY OF NOVEMBER 2017

In presence of;

Plaintiffs 2nd present

Defendants Absent

Counsel Mr. Odeny for the Plaintiff

Mr. Awino for the 6th Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017

29/11/2017

S.M. Kibunja Judge

Oyugi/Joane court assistant

Mr. Odeny for the Plaintiffs/Respondents

Mr. Awino for the 6th Defendant/applicant

Court: The ruling dated and delivered in open court in the presence of the 2nd Plaintiff, Mr. Odeny for the Plaintiffs and Mr. Awino for the 6th Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/11/2017