[2013] KEHC 5641 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL SUIT NO.218 OF 1988

JULIUS MANOAH SHIKHO …………………..…………….….. PLAINTIFF

VERSUS

TRUKASI SHIUMILA ASIABUKWA …………………....…… DEFENDANT

J U D G E M E N T

By a plaint dated 2. 7.1988 the Plaintiff SHIKHO SHIRESI sued the Defendant, Paul ASEGWA BUSOLO seeking the following orders:-

A declaration that the plaintiff is the rightful owner of Land Parcel No. KAKAMEGA/BUKHUNGU/221.

An order that the said Land be registered in the Plaintiff’s names.

Costs of the suit.

The case at first proceeded exparte on 21. 3.94. On 24. 7.2000 the expartejudgment was set aside. The original Plaintiff passed away in the year 1997 before the case was heard inter-partes and determined and was substituted by his son JULIUS MANOA SHIKHO. The original Defendant passed away in the year 1998 and was substituted by his wife TRUKASI SHIUMILA ASIABUKWA.

The Plaintiff’s case is that the land the subject matter of this suit was registered in the father’s name, DONALD SHIRESHI MAHESO before the Defendant fraudulently transferred it to himself in the year 1984.

The Plaintiff’s claim was denied by the Defendant. The Defendant’s contention is that the land was sold by the Plaintiff to the Defendant in the year 1982 through a sale agreement and the Defendant took possession of the land and erected buildings therein and moved in. The Defendant denied the allegation of fraud.

PW.1 JULIUS MANOAH SHIKHO testified that the suit property belonged to his grandfather, DONALD SHIRESI MAHESO before the Defendant, PAUL ASEGWA BUSOLO fraudulently registered in his (Defendant’s) name. PW.1 produced a copy of the Green Card which shows that the land was registered in his grandfather’s name in the year 1976. That a search carried out in the year 1996 reflected that the land was registered in the name of the Defendant, PAUL ASEVUGWA BUSOLO.

During cross-examination, the Plaintiff (PW1) stated that he was seeing the sale agreement, the application for the consent of the Land Control Board and the consent of the Land Control Board for the first time in court. He also admitted that the Defendant’s family lives on a portion of the land and cultivates the same. He further conceded that the original Defendant was buried on the suit land where he passed away. Finally, the Plaintiff stated that his grandfather had the right to sell the land but that his family wanted to make sure that his grandfather sold the land as they were not aware of the sale. According to the Plaintiff, his grandfather was blind and illiterate and was also buried on the said land where he died.

The evidence of blindness was contradicted by PW.2 PETER MUSALIA when he stated that it was SHIKHO the original Plaintiff who was blind not the grandfather. The evidence of PW.2 and that of PW.3 ISACK MMBONO MMBOYI the Assistant Chief confirms that both the Plaintiff and the Defendant’s families occupied the land and used to have a boundary between them before it was removed. The evidence of PW.2 shows that the defendant bought the portion of land that he occupied. PW.2 did not however, know the details of the transaction.

The Defendant, DORCAS (TRUKASI) ASEGWA the widow of the original Plaintiff on the other hand testified that her late husband purchased the land in question from SHIRESI MAHESO in the year 1992. She produced the sale agreement together with its interpretation, the application for consent of the Land Control Board as exhibits and stated that the purchase price of KShs.8,000/- was paid and the title transferred to her late husband. She also produced a copy of the green card and the copy of the title deed and stated that they purchased the entire parcel of land. The said Defendant further testified that they took possession of the land and have built houses which they live in and cultivate the land.

The Defendant’s evidence further shows that the original Plaintiff was buried on the land in question, and his family then built there and settled there. As stated earlier on, exparte judgment was entered herein and the title transferred in the Plaintiff’s name. The ex parte judgment was however set aside.

PW.7 BEREM LUHANGE who was one of the witnesses to the sale agreement testified that his grandfather KIRESI MAHESI sold the suit land to the original Defendant herein for KShs.8,000/-. The evidence of PW.7 corroborates that of the Defendant including the issue of obtaining the consent of the Land Control Board.

DW.1’s evidence also corroborated the Defendant’s evidence that the Defendant took possession of the land and has settled there. DW.1 further testified that although his grandfather was elderly, he was not blind and he used to cultivate the suit land as per the sale agreement because he was an elderly man. It is DW.1’s evidence that he witnessed the grandfather execute the sale agreement by appending his thumb print on the same and also produced his identity card for the number to be reflected on the sale agreement.

DW.1 stated that the seller of the land was his grandfather, KIRESI MAHESI and described the plaintiff as his uncle, but not a son to KIRESI MAHESI who had only one son NAHESO SHIKO. This could probably explain the different names the Plaintiff has used to describe the grandfather i.e. as DONALD SHIRESI NAHESO and as KIRESI MEHESI, stating that all the names belong to one and the same person. Out of curiosity I had looked at the evidence of the original Plaintiff when the case proceeded exparte. The original Plaintiff had described DONALD SHIRESI NAHESO as his father’s young brother. This agrees with the evidence of DW.1.

The Plaintiff, JULIUS MANOAH’s evidence in court and the proceedings do not accord with the name on the title deed of the suit land as registered in the year 1976, that is, KIRESI MINESI.

The evidence from the Defendant’s side is corroborative and supported by the documents produced. The sale agreement meets the threshold for a contract of sale of land as stipulated in section 3 of the Law of Contract Cap 23 Laws of Kenya.

On the other hand, the Plaintiff did not know any details concerning the sale. It appears that the Plaintiff was on a fishing expedition as he stated during cross-examination. … “As a family we required to be sure if my grandfather had sold the land”. Indeed the Plaintiff stated if it is proved that the land was sold, he would have no problems with that.

My conclusion is that the Plaintiff failed to prove his case on a balance of probability.The Defendant has proved that the Plaintiff purchased the land and followed the necessary procedures to have the land registered in his name.

The Defendant raised the issue as to whether the original Plaintiff had any locus standi to institute the suit. It is clear from the plaint that the plaintiff filed suit claiming land that was registered in the name of his father, the late DONALD SHIRESI NAHESO.The Plaintiff ought to have obtained letters of grant of Administration.There is also no evidence on record to show that the current Plaintiff and current Defendant obtained any grant of Letters of Administration before substituting the original litigants.

The issue of locus standi has been raised rather late in the day. This suit was filed in the year 1988. The original Plaintiff and the original Defendant are no longer alive.Only one of the witnesses was alive during the hearing of this suit.

However, on the merits of the case, the Plaintiff has failed to prove his case. I will therefore not dwell on the issue of technicalities at this stage and after about 25 years since the suit was instituted.

Since the exparte judgment was set aside on 24. 2.2000, the title deed issued on 3. 11. 1997 pursuant to the exparte judgment dated 16. 8.1995 stands revoked. The title to the land should be reinstated to the original Defendant PAUL ASEVUGWA BUSOLO.

With the foregoing, I dismiss the Plaintiff’s case with costs to the Defendants.

B. THURANIRA JADEN

JUDGE

DatedanddeliveredatKakamegathis6th day ofJune2013.

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SAID J. CHITEMBWE

JUDGE