[2018] KEELC 2175 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 34 OF 2012

JOSPHAT KAVATI NZIMBI..............................................PLAINTIFF

VERSUS

JOSPHAT NYINGI PETER............................................DEFENDANT

JUDGMENT

1. In the Plaint dated 10th February, 2012, the Plaintiff averred that at all material times, he was the registered proprietor of land known as plot number 3063 King’oti Adjudication Section; that in 1993, he had a mental impairment and was admitted at Mathari mental hospital and that when he got well, he realised that the suit land had been fraudulently transferred to the Defendant.

2. According to the Plaintiff’s Plaint, the Defendant filed Objection proceedings without disclosing his mental status; that the Defendant presented a stranger in the Objection proceedings and that the Defendant fraudulently had himself registered as the proprietor of the suit land.

3. The Plaintiff is seeking for a declaration that he is the legal owner of the suit land and for a permanent injunction restraining the Defendant from using the suit land.

4. The Defendant filed a Preliminary Objection in which he stated that the suit is res judicata. In the Defence, the Defendant stated that the suit land was transferred to him vide Objection proceedings on 12th March, 1993; that the Plaintiff was present and was of sound mind when the decision was made; that he is the legal owner of the suit land and that the suit is res judicata.

5. The suit proceeded by way of viva voce evidence. The Plaintiff, PW1, informed the court that between the years 1993-2000, he was suffering from a medical impairment condition which resulted in his admission to Mathari hospital as IP No. 42896; that when he was discharged from the hospital, he found that plot number 2144 had been changed to plot number 3692 and transferred to one Josphat Nyingi Peter(the Defendant) and that he only became aware of these changes in the year 2009.

6. It was the evidence of PW1 that he has always owned plot numbers 3063 and 3692, King’oti Adjudication Section and that he was born on the land in 1920; that the suit land originally belonged to his grandfather and that the Defendant has appropriated his land.

7. In cross-examination, PW1 stated that he never sold a portion of the suit land to Peter Matolo; that he is not aware if his brother, Nzioki Nzimbi sold the land to Peter Matolo and that he has never had a case in court with the said Peter Matolo.

8. The Defendant, DW1, informed the court that he is the registered proprietor of the suit land which he inherited from his father, Peter Musyuko Matolo; that the Plaintiff is his neighbour and that he has never been hospitalized for mental illness.

9. According to DW1, there was a dispute in respect to the suit land being Objection Number 842, King’oti Adjudication Section and that a decision was made on 12th March, 1993 which has never been challenged to date; that the letter dated 14th September, 2011 purportedly from Mathari hospital is suspect and that the suit is res judicata.

10. In cross-examination, DW1 stated that his father bought the suit land; that the Plaintiff was never given the land during the adjudication period and that the Plaintiff and Mr. Nzioka used to sell their land as a family.

11. The Plaintiff’s advocate submitted that the Plaintiff had proved that he was the registered proprietor of parcel number 3063; that the suit land was fraudulently sold to the Defendant’s father and that the Objection proceedings in 842 do not show if the Plaintiff participated.

12. According to counsel, it was upon the Defence to show that the Plaintiff was not mentally ill as at the time the suit land was sold and that the Plaint should be allowed.

13. The Defendant’s advocate submitted that the Plaintiff did not prove that he was mentally ill when the suit land was sold and when the Objection proceedings were undertaken; that the Plaintiff remembered having dealt with a dispute with the Defendant’s father and that the suit should be dismissed.

14. This suit is in respect to a parcel of land relating to P/No. 3063 within the King’oti Adjudication Section. The Plaintiff produced the consent of the Machakos Land Adjudication officer allowing him to file the suit pursuant to the provisions of Section 30 of the Land Adjudication Act.

15. The evidence produced by the Plaintiff shows that the Plaintiff was initially entered into the adjudication records as the proprietor of the suit land.

16. However, the Defendant informed the court that the suit property belonged to his father and that he was given the land by the Adjudication officer vide the proceedings in P/No. 3063 of 12th March, 1993.

17. The proceedings in respect to P/No. 3063 shows that Peter Matolo sued the Plaintiff herein in which he stated that he bought the suit land from one Nzioki, the Plaintiff’s father. According to the proceedings of 12th March, 1993, the Defendant herein cross-examined at length the Plaintiff’s father in respect to his claim over the suit land. In his decision, the Land Adjudication Officer decided the matter in favour of the Plaintiff’s father.

18. Although the proceedings in P/No. 3063 shows that the Plaintiff participated in the proceedings, the Plaintiff has claimed that he was away in a mental hospital in Mathari, and that he was not aware of the said proceedings. However, and despite being given an opportunity by this court, the Plaintiff did not produce any evidence from the Mathari hospital to confirm those allegations.

19. Having not produced evidence to show that he was admitted in a mental hospital during the hearing of the Objection proceedings, I am not satisfied that the suit land belongs to the Plaintiff.

20. Considering that the Plaintiff did not appeal against the decision of the Adjudication Board, or filed an Application seeking for the quashing of the said order, then he should let go and allow the Defendant to utilize the land. In the circumstances, I find that the Plaintiff has not proved his case on a balance of probabilities. I therefore dismiss the Plaint dated 10th May, 2012 with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 27TH DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE