[2019] KEELC 4454 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAKURU

ELC NO.50 OF 2016

MIKA CHEPKAITANY.............................................................PLAINTIFF

VERSUS

MARTHA KIMOI LOIRO.....................................................DEFENDANT

JUDGMENT

(Suit by plaintiff to restrain defendant from the suit properties; defendant filing counterclaim and claiming that she is entitled to one acre of land after purchasing it from the original owner; sale of the one acre having taken place more than 20 years to the filing of the counterclaim; plaintiff having held title for over 20 years; claim by defendant time barred; in any event claim by defendant cannot succeed for want of Land Control Board consent; defendant’s counterclaim dismissed; plaintiff entitled to have the defendant permanently restrained from the suit properties).

1. This suit was commenced through a plaint which was filed on 23 February 2016. The plaintiff has averred that he is the registered proprietor of the land parcel Kampi Ya Moto/Kampi Ya Moto Block 1/983 and 984 (the suit properties) having purchased the said parcels of land in the years 1994 and 1996 from one William Chepkonga. He pleaded that the defendant has intermittently been interfering with his parcels of land claiming to have purchased one acre from the same William Chepkonga. In the suit, the plaintiff wishes to have orders permanently restraining the defendant from the suit properties together with costs and interest.

2. The defendant filed defence and counterclaim vide which she pleaded that she is the legal owner of one acre of the suit properties having purchased the one acre from William Chepkonga, on 18 December 1991.

3. In his evidence, the plaintiff testified that the land was previously owned by the father of Mr. Chepkonga, and was 15 acres. This land was then subdivided into two amongst his two sons, with each getting 7. 5 acres. It is this share of Mr. Chepkonga that was sold to him. He first purchased from William Chepkonga, 3 acres in the year 1994, the land parcel No. 984, and in the year 1997, he purchased the other 4. 5 acres. After purchase, he moved into the properties, fenced them, and commenced farming activities. He stated that the defendant has been interfering with his possession and has tried to gain entry about six times claiming that Mr. Chepkonga sold to him the said land. He testified that when he purchased the land, the same was vacant and the defendant was not resident on it. He stated that he has no knowledge of any purchase by the defendant of the same land. He stated that the one acre claimed by the defendant lies on both parcels No. 983 and 984.

4. In her evidence, the defendant testified that she purchased the one acre on 18 December 1991 at Kshs. 30,000/= and she produced the sale agreement. She stated that she fenced the land in the year 1992, built a small house and kept a caretaker as she was not residing on this land. She stated that she cultivated the land in the years 1992 and 1993 and planted maize and beans. She however mentioned that in the year 1992, the plaintiff destroyed her structure, and in the year 1994, she built another “mabati” structure which was also destroyed by the plaintiff. She complained that whenever she would cultivate, the plaintiff would proceed to destroy her crops and it has been like that to date. She reported to Mr. Chepkonga in the year 1994, and they wrote an agreement dated 13 May 1994 before the Chief. She stated that when she purchased the one acre, the land was still 7. 5 acres and she did not know when it was subdivided.

5. DW-2 was Mr. William Chepkonga. He testified that the whole land was initially 15 acres which was subdivided equally between himself and his brother Michael Kimityon after inheriting the same from their father. He stated that in the year 1991, he sold one acre to the defendant, and that the defendant took possession, fenced the land, and built a structure. He stated that he leased the rest to the plaintiff although they did not have anything in writing for the lease. He denied having sold 7. 5 acres to the plaintiff. He stated that the plaintiff only brought to him some documents which he signed but did not know their contents. He stated that he has never held title in his name and that title was joint with his brother. Cross-examined, he stated that the documents that he, the plaintiff, brought to him to sign, were meant to subdivide the land. He contended that to date, he does not know whether the land had been subdivided. He stated that his brother also complains that he has not been given title to his land although he has not made any formal complaint. He stated that the lease that he had with the plaintiff was an oral lease for 7 years starting in the year 1994 and that the rent was Kshs. 2,000/= per year. He admitted that the plaintiff is still in possession although he does not pay him the rent and he affirmed that he does not want any money from him. He admitted that he has not complained to the authorities nor sued the plaintiff for keeping possession of the land. He explained that the 1994 agreement that he had with the defendant was so as to compensate the defendant because the plaintiff was on the land. He insisted that he informed the plaintiff that he has sold one acre to the defendant. The instruments that transferred the properties to the plaintiff were put to him and he admitted that the signatures therein were his signatures.

6. With the above evidence, the defendant closed her case.

7. I invited both Mr. Gai, learned counsel for the plaintiff and Ms. Moenga, learned counsel for the defendant to make written submissions and they both did. I have taken these into account in arriving at my decision.

8. The plaintiff in this case contends to be the owner of the suit properties and essentially wants the defendant to stop interfering with his possession of the properties. He produced the title deeds and search in his evidence and I have seen that he became registered as proprietor of the land parcel No. 984 on 20 July 1994, and proprietor of the land parcel No. 983 on 28 June 1996. The only way in which I can defeat his proprietary rights is if I am persuaded that the defendant has established a case for ownership of one acre as she has claimed. I therefore opt to start with the counterclaim of the defendant for the one acre of land.

9. It is her case that she purchased this land from Mr. Chepkonga, and to support that position, she has produced the sale agreement of 18 December 1991 and another agreement of 13 May 1994. I have looked at these agreements. In the agreement of 1991, which is home made, Mr. Chepkonga avers to have sold one acre to the defendant for the sum of Kshs. 30,000/= of which Kshs. 20,000/= was noted to have been paid, and the balance of Kshs. 10,000/= was to be paid when the title deed is available. The land parcel indicated as having been sold is No. 16 at Kampi Ya Moto. The second agreement of 13 May 1994, is made at the offices of Mr. Kipkenei Advocate. That agreement affirms that one acre of land has been sold by Mr. Chepkonga to the defendant but what I find of interest is that in this agreement, there is a clause 5 which provides inter alia that “the purchaser will be compensated by the vendor for allowing a third party to cultivate the land this year and Kshs. 1,000/= has been agreed upon by both parties to be reasonable in the circumstances to be paid to the purchaser on or before December 1994. ” It does appear therefore, that as at the year 1994, the defendant’s possession of the land was already being disturbed, and from the evidence, that disturbance came from the plaintiff. Now, if indeed, the defendant thought that she has a good claim for the purchase of the one acre of land, she needed to pursue it at this time, but it is apparent that she never filed any claim in court.

10. This counterclaim was filed on 4 May 2016, more than 20 years after the agreements of 1991 and 1994, and certainly after 20 years since the plaintiff obtained title to the suit properties. It is clear to me that the claim of the defendant is already time barred given the provisions of Section 7 of the Limitation of Actions, Act, Cap 22, which provides as follows :-

7. Actions to recover land

An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

11. The right of action of the defendant to recover the one acre that she purchased, accrued immediately she was dispossessed by the plaintiff, and if she wanted to nullify the plaintiff’s title, immediately the plaintiff got title, and she had 12 years to present her claim before court. She never did, and I do not see how she can be permitted to make that claim 20 years later. She cannot pretend not to have known of the plaintiff’s claim over the land for the plaintiff took possession and continuously repulsed her attempts to gain entry into the land. I regret that I am unable to entertain her claim for the one acre after lapse of this considerable period of time.

12. In any event, even if I was to entertain it, the claim would still fail for want of consent of the Land Control Board. It is common ground that the land is agricultural land and the Land Control Act, Cap 302, Laws of Kenya, requires that consent of the Land Control Board be applied for within 6 months of the sale agreement. Where no such application is made, nor consent issued, the sale agreement will be declared null and void. The defendant has not displayed to this court any application for consent of the Land Control Board, and it follows that her agreement was rendered null and void within 6 months. Her only remedy, barring any defence on limitation, is the money that she paid, and that she needs to pursue against the seller of the land, Mr. Chepkonga, and not the plaintiff.

13. For the above reasons, the counterclaim by the defendant must fail and the same is hereby dismissed.

14. With the dismissal of the counterclaim, I have no reason to decline to enter judgment for the plaintiff. He is the registered proprietor of the suit properties and as proprietor he is entitled to all rights of ownership including the right to exclusive possession. He is entitled to the order to have the defendant permanently restrained from interfering with his quiet possession of the suit properties.

15. I believe that I have dealt with all issues and make the following orders :-

(i) That the defendant has no recognizable right to one acre, or to any portion of land, of either the land parcel Kampi Ya Moto/Kampi Ya Moto Block 1/983 and/or 984 and her counterclaim is hereby dismissed.

(ii) That the defendant is hereby permanently restrained from entering, being upon, utilizing, or in any way interfering with the plaintiff’s use and possession of the land parcels Kampi Ya Moto/Kampi Ya Moto Block 1/983 and 984.

(iii) That the plaintiff shall have the costs of the main suit and of the counterclaim together with interest at court rates.

16. Judgment accordingly.

Dated, signed and delivered in open court at Nakuru this 27th day of February 2019.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of : -

Ms. Amulabu holding brief for Mr. Ocheing’ Gai for the plaintiff.

Ms. Wairimu holding brief for Mr. Mongeri for the defendant.

Court Assistant: Nelima Janepher.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU