[2017] KEELC 858 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND HIGH COURT AT GARISSA

ELC CASE NO. 7 OF 2017

KASEMBI MWOVA………………..…....….........…1ST PLAINTIFF

JEMIMAH MANESA WAMBUA………..…......…..2ND PLAINTIFF

VERSUS

MUSEMBI NGUA………………….............…….……DEFENDANT

JUDGMENT

The plaintiffs Kasembi Mwova and Jemimah Manesa Wambua have sued the defendant Musembi Ngua for an order of declaration that they are the owners of land Parcel No. Kyuso/Ngomeni “A”/1114 measuring approximately 1. 06 Hectares or thereabouts situated at Kavuti Sub-location in Ngomeni market. They are also seeking vacant possession of a portion of the suit property measuring approximately half an acre and eviction orders. In a plaint dated 28th February 2017 and filed on 1/3/2017, the plaintiffs aver that the defendant encroached on their piece of land and that they lodged a complaint at the Chiefs office, Ngomeni location whereby the defendant made a promise to pay Kshs.130,000/= for a portion of 50 feet x 100 feet failing which he will vacate the disputed portion. However the defendant failed to honour his promise.

The plaintiffs further aver that on or about July 2016 the defendant started using a temporary structure he had put up illegally in the suit land as a slaughter house.

In his statement of defence dated 18th March and filed on 29th March, 2017, the defendant denies the plaintiffs’ claim and contends that he bought the plot from one Samuel Munyoki Sila now (deceased) at Ngomeni market measuring 100 x 100 feet. Immediately after purchasing the plot he constructed a building and has been using the same to date.

The defendant avers that the title to the suit land was issued in 2015 while he has been in occupation since 1994 long before the adjudication process commenced.

PLAINTIFFS’ CASE

The plaintiffs are blood sisters. The first plaintiff in her statement dated 23/2/2017 stated that they are registered owners of land Parcel number Kyuso/Ngomeni “A”/1114. She attached a copy of a title deed in a list of documents issued on 15th April 2015. She submitted that the title deed is a prima facie evidence of ownership and that the defendant has not challenged the title deed or even produced another title deed showing proprietary rights over the suit land. The first plaintiff also avers that the defendant has not produced any documents showing that he bought the suit property from one Samuel Munyoki Sila (deceased).

The plaintiff also avers that the defendant has not filed a counter claim to the suit property or raised any objection to their acquisition of the suit property such as fraud or illegally and therefore their title is free from all other interest and claims whatsoever but subject only to those encumbrances conditions and restrictions in the register.

The plaintiff also stated that prior to be registered as proprietors, the suit property was a subject of an adjudication process where the defendant or any other persons claiming any interest therein could have presented such interest to the Land Adjudication and Settlement Office. They contend that the defendants claim is not known in law and that the orders sought in the plaint should be granted.

DEFENDANTS CASE

The defendant testified on oath and stated that he bought a portion of land from one Samuel Munywoki Sila measuring approximately 70 feet x 100 feet in the year 1994. Immediately thereafter he took possession and started developing the same by putting up a shop.

In 2013, she received a letter from the plaintiffs asking him to vacate his land. He was surprised as he had nothing to do with the plaintiffs. The plaintiff also called one Robert Musili (DW2) as a witness who stated that he knows the defendant bought the land he is having from one Samuel Munywoki at a consideration of Kshs.46,000/=. He was a witness in that sale agreement. He said that the defendant bought the property in the year 1994 after which he started developing the same.

SUBMISSIONS BY THE PLAINTIFF

Counsel for the plaintiff Mr. Nzili filed his submission is support of the plaintiff’s claim herein on 2/11/2017. In his submissions, the learned counsel argued that the plaintiffs have produced title deed documents as proof of ownership of the suit property. The learned counsel further submitted that the defendant has not filed any counter claim to the plaintiffs claim to the suit property. Counsel urged that having been registered as proprietor of the suit property the plaintiff’s title is indefeasible and unimpeachable in law. He also stated that the registration of the plaintiff as the owner of the suit property has not been challenged on grounds of fraud or illegality.

DEFENDANTS SUBMISSIONS

The counsel for the defendant Mr. Kinyua filed his written submissions on 2/11/2017. In his submissions, counsel stated that the defendants’ is not occupying the plaintiffs land and that the defendant is occupying a parcel of land he bought from one Munywoki Sila. Mr. Kinyua further submitted that the defendant has been occupying the suit land since 1990s with no interruption from any one. He referred to demand letters sent by the plaintiff which he says the land occupied varies in different demand letters. The learned counsel urges that the plaintiff should have called a surveyor to demarcate or asked the court to visit the scene to confirm that the building is on their land.

ISSUE FOR DETERMINATION

The issues for determination are framed as follows:

1. Whether the plaintiffs are registered proprietors of the suit land?

2. What is the place of a registered proprietor in law?

3. What interest is the defendant claiming and whether it is legitimate in law?

4. Whether the plaintiffs have proved this case on the required standard?

5. Who will bear the costs?

ANALYSIS AND DECISION

I have considered the testimony of the plaintiffs, the defendant, and their witnesses. I have also considered the documents produced and relied by the parties. The plaintiffs have testified on oath how they secured the suit property. They explained that they are both registered as proprietors of the suit property No. Kyuso/Ngomeni “A” /1114 measuring 1. 06 HA they stated that they secured the land from their uncle after subdivision of land parcel No. Kyuso/Ngomeni/450 between them and all their brothers and sisters. The plaintiff also stated that before being registered as proprietors of the said land their uncle had been sued in the Land Disputes Tribunal, Land Survey Committee and the District Committee and he won all cases.

The same testimony was duplicated in the witness statement of the second plaintiff. The plaintiffs called one Maurice Sambilo Ndoo who stated that he gave the plaintiffs the land parcel No. Kyuso/Ngomeni “A”/1114. He gave the land to the two after the conclusion of cases in the Tribunal Survey Committee and the District Committee which were decided in his favour. The production in court a title deed No. Kyuso/Ngomeni “A”/1114 in the joint names of the plaintiffs as a prima farcie evidence of ownership of land. Under Section 25 of the Land Registration Act 2012, the law provides thus:

“25 The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor with all privileges and appurtenance belonging interests, free from all other interests and claims whatsoever, but subject:-…”

A cursory look at the proprietorship does not indicate any interests or encumbrances on the suit property. The defendant alleged that he bought the portion of the suit property from one Munyowki Sila. However, he did not show the relationship between the alleged Munywoki Sila and the proprietors of that suit property who are the plaintiffs herein.

The defendant has not shown or demonstrated any legitimate interest known in law and capable of being protected by this court. He simply stated that he bought a portion in the suit land from a person by the name Munywoki Sila but did not demonstrate how the alleged Sila Munywoki is related to the plaintiffs herein. The defendant did not even produce a sale agreement to show which property he allegedly bought.

If indeed the defendant bought a portion of the suit property from persons other than the registered proprietor, then his remedy lies elsewhere. From my analysis of the evidence adduced by the plaintiffs and their single witness I am satisfied that they have proved their case on the required standard. I therefore find and hold that they are entitled to the orders sought which I hereby issue as prayed in the plaint. The OCS Commanding the nearest police station to supervise the said eviction. The costs of this case to be borne by the defendant.

Read and Delivered in the Open Court this 30th day of November, 2017.

E. C. CHERONO (MR.)

ELC JUDGE

In the presence of:

1. Mr. Ojiambo holding brief for Nzili for plaintiff.