[2016] KEELC 406 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC CASE NO.103 OF 2014

JOSEPHINE ANYANGO LANDO [Suing as the legalRepresentative

of the estate of ASEWE MULONGA Deceased]......................PLAINTIFF

VERSUS

STEPHEN OGAMBO.....................................................................DEFENDANT

JUDGMENT

1. Josephine Anyango Lando(suing as legal Representative of the estate of Asewe Mulonga, deceased), the Plaintiff, filed this suit through the plaint dated 7th April 2014, against Stephen Agambo, the Defendant, seeking for the following prayers;

“a) A declaration that the estate of that the transfer and registration of the entire land parcel number East Ugenya/Jera/632 into the name of the defendant is irregular, null and void.

b. A declaration that the Asewe of Asewe Mlonga also known as Asewe Mulonga – Deceased is entitled to half share of the land parcel Number East Ugenya/Jera/632.

c. An order for the nullification and cancelation of the entries number 2 and 3 in the land registry record for land parcel Number East Ugenya/Jera/632 and revocation of the title deed issued in the name of the defendant.

d. A permanent order of injunction restraining the defendant either by himself, his agents, servants representatives and or any other person authorized by him from trespassing, encroaching, selling transferring, disposing, sub-dividing or working or in any other way interfering with the Plaintiff and her family possession and or occupation of half share of the suit land parcel East Ugenya/Jera/632.

e. Costs of the suit”.

She avers that the deceased and the defendant were proprietors in common of land parcel East Ugenya/Jera/632 and that the defendant had without filing a succession cause or obtaining consent from the estate of the deceased illegally registered himself as the sole proprietor of the said land.

2. The Defendant opposed the Plaintiff’s claim through the statement of defence dated 26th May 2014. He avers that the Plaintiff has never been chased away from the said land.

3. In support of her case, the Plaintiff testified as PW1 and called Lando Mulongawho testified as PW2. The Defendant testified as DW1. Mr. Onyango advocate appeared for the Plaintiff. The following is the summary of the parties cases;

a. PLAINTIFF’S CASE:

That the Plaintiff was the wife of one Asewe Mulonga who died in November 1985 leaving behind land parcel East Ugenya/Jera/632 which was in the joint names Defendant and the deceased. The Plaintiff produced a copy of the register for the land and certificate of death for the deceased as exhibits. That the Defendant later on 7th August 1995 had the name of the deceased removed from the register of the land after chasing the Plaintiff from the land in 1987. The Plaintiff then filed a succession cause in respect of her late husband in Kisumu H.C. Succession Cause no.302 OF 2014 and obtained a grant on 28th February 2014, and produced a copy as exhibit.

That the Deceased had registered the Defendant as owner of half share of the land out of generosity but she now wanted the whole land to herself. PW2 testified that the deceased was his brother and that the land in question belonged to him and not to the Defendant.

b. DEFENDANT’S CASE

That the land belonged to his parents. That after the death of his father, the land was taken over by his mother named Rosa and the man who remarried her called Ogawa. That after Rosa’s death, the Defendant inherited the land. That when Ogawa took the land from him, he lodged a complaint against him at the adjudication office on 04. 07. 1968 and he defeated him. He produced a copy of the proceedings as exhibit. The Defendant testified that the adjudication exercise took place when he was in Eldoret and that the land was registered in the joint names of himself and Asewe (deceased). Later, Asewe wanted to subdivide the land but was not successful. After Asewe died, the elders asked him to allow the body be buried on the land saying Plaintiff would be inherited. That later the Plaintiff was inherited by PW2 and that they demolished Asewe’s homestead and carried the materials from the land. The Defendant said he has established a home on the land and has lived on it for over 25 years and that the Plaintiff’s claim should be dismissed with costs. Answering questions Defendant said that he did not know how his name was entered into the suit land register and that Asewe had his name entered as a co-owner without his (Defendant) knowledge. He added that he got to know that Asewe was a joint owner of the land in 1985 but he did not find it necessary to file a court case against him. He conceded that the 1968 proceedings, that he produced as exhibit, did not refer to land parcel East Ugenya/Jera/632 as adjudication and registration of land had not been completed. He also conceded that the 1968 case was not against Asewe but one Agawa. He disclosed that he transferred the land to his sole names in 1995 without filing a succession cause in respect of the estate of Asewe.

4. The issues for determination are as follows:

a. Whether the Plaintiff is the administrator of the estate of Asewe Mulonga, deceased.

b. Whether Asewe Mulonga , deceased, was a half share proprietor of land parcel East Ugenya/Jera/632.

c. Whether the interest of the estate of Asewe Mulonga, deceased, in land parcel East Ugenya/Jera/632 have been dealt with in accordance with the Law of Succession Act Chapter 160 of Laws of Kenya.

d. Whether the Defendant registration as sole proprietor East Ugenya/Jera/632 was lawful, regular, procedurally done and if not whether the legal status should be reverted to that obtaining previously.

e. Which orders to issue

5. The court has carefully considered the pleadings filed by both parties, the oral and documentary evidence availed for and against the claim and come to the following determinations;

a. That land parcel East Ugenya/Jera.632 was first registered on 6th July 1976 in the joint names of Asewe MulondaandStephen Ogambo each holding half share.

b. That the said Stephen Ogambo is the Defenbdant herein and the copy of the register show that he transferred the land to his sole name on 7th August 1995.

c. That Asewe Mulonda died on 10th November 1985 as confirmed by the certificate of death No.15762 and in terms of Section 2(1) of the Law of Succession Act, the property has to be dealt with in accordance with the provisions of that Act.

d. That the said Asewe Mulonda having died in 1985 could not have been the one who transferred his half share of the land to the Defendant ten (10) years later in 1995.

e. That the Defendant has in his oral evidence conceded that he had the suit land transferred into his sole name through the Land Registrar’s office and without filing a succession cause for the estate of Asewe Mulonda, deceased. That the act by the Defendant and the Land Registrar to transfer the land to his sole name was unlawful, irregular, unprocedural and the title the Defendant got over the half share of Asewe Mulonda was not good title and cannot entitle him to absolute ownership, under Section 26(1) of the Land Registration Act No.3 of 2012.

f. That the Plaintiff, being the lawfully appointed administratrix of the estate of the late Asewe Mulonda has the duty and capacity to file this suit to recover and collect the estate for purposes of administration of the estate in accordance with the provisions of the Law of Succession Act.

6. That the Plaintiff has proved her case against the Defendant on a balance of probabilities and the court enters judgment in her favour as follows;

a. That the transfer and registration of the half share of Asewe Mulonga, deceased, in land parcel East Ugenya/Jera/632 to the names of the Defendant on 7th august 1985 was irregular, unprocedural, unlawful and hence null and void for failure to adhere to the provisions of the Law of Succession Act.

b. That the estate of Asewe Mulonda alias Asewe Mlonga, deceased, is entitled to half share of land parcel East Ugenya/Jera/632.

c. That the registration of the Defendant as the sole registered proprietor of land parcel East Ugenya/Jera/632 on 7th August 1995 is hereby cancelled as well as the title deed issued thereof.

d. That the land Registrar Siaya, is hereby directed to immediately rectify the register for land parcel East Ugenya/Jera/632 by cancelling entries number 2 and 3 and reverting the registration and ownership of the said land to the joint names of Asewe Mulonda, deceased, and Stephen Ogambo in equal shares to enable the interest of the estate of Asewe Mulonda in the said land to be dealt with in accordance with the Law of Succession Act.

e. That the Defendant do pay the costs of this suit.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 19TH DAY OF OCTOBER 2016

In presence of;

Plaintiff Present

Defendant Present

Counsel Mr Onyango for Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016

19/10/2016

S.M. Kibunja J

Oyugi court assistant

Both parties present

Mr. Onyango for the Plaintiff

Court: Judgment dated and delivered in open court in presence of both parties and Mr. Onyango for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

19/10/2016