[2023] KEELC 15906 (KLR)

Ng’iela & another (Suing as Legal Administrators of Joseph Ng’iela Mbori- Deceased) v Amayi (Sued as the Legal Administratrix of Alexander Mireri- Deceased) (Environment & Land Case 47 of 2021) [2023] KEELC 15906 (KLR) (7 March 2023) (Judgment)

Neutral citation: [2023] KEELC 15906 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment & Land Case 47 of 2021

GMA Ongondo, J

March 7, 2023

Between

Andronico Ondoro Ng’iela

1st Plaintiff

Mary Achieng Ng’iela

2nd Plaintiff

Suing as Legal Administrators of Joseph Ng’iela Mbori- Deceased

and

Sophia Madewa Amayi

Defendant

Sued as the Legal Administratrix of Alexander Mireri- Deceased

Judgment

A. Introduction 1. The instant suit concerns a portion of land out of land reference number Central Kasipul/Kamuma/13 measuring approximately nought decimal five hectares (0. 5 Ha) in area (The suit land herein). The same is located within Homa Bay County.

2. The plaintiffs are represented by the firm of Oguttu Mboya, Ochwal & Partners Advocates.

3. The defendant is represented by the firm of D. O. E Anyul and Company Advocates.

4. On 26th October, 2021 this matter was transferred from Migori Environment and Land Court where it was originally lodged, to this court for hearing and determination in the spirit of access to justice under Article 48 of the Constitution of Kenya, 2010.

B. Summary of The Parties’ Respective Cases 5. On 17th October, 2017, the plaintiffs, through their Advocates, filed the present suit by way of an Originating Summons dated 25th September, 2017. The same was brought pursuant to Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act Chapter 22 Laws of Kenya.

6. The plaintiffs have sought the orders infra:a.A declaration that the defendant’s rights to recover the suit land is barred under the Limitation of Actions Act (supra) and her title thereto extinguished on the grounds that the deceased and/or plaintiffs herein have openly, peacefully and continuously been in occupation and possession of the aforesaid suit land for a period of 49 years.b.There be an order that the plaintiffs herein be registered as proprietors of the suit land, in place of the defendant.c.There be an order restraining the defendant either by herself, agents, servants and/or employees from interfering with the plaintiffs’ peaceful possession and occupation of the suit land, in any manner whatsoever and/or howsoever.d.The Deputy Registrar and/or the Executive Officer of the honourable High Court be directed and/or ordered to execute the mutation, transfer instruments and all attendant documents, to facilitate the transfer and registration of the suit land in favour of the plaintiffs.e.Costs of the originating summons be borne by the defendant.f.Such further and/or other orders be made as the court may deem fit and expedient, in the circumstances of this case.

7. The originating summons is anchored on a twenty four (24) paragraphed supporting affidavit of the 2nd plaintiff sworn on even date and annexed thereto. The plaintiffs contend that the entire land was originally registered in the name of Alexander Mireri (deceased 2), the father of the defendant herein. That their late father, Joseph Ngiela Mbori (deceased 1) entered into a land sale agreement with Alexander Mireri (deceased 2) for the sale of a portion of the suit land measuring approximately nought decimal five hectares (0. 5 Ha) in area. That besides, they have been in continuous, open and uninterrupted occupation of that portion of the suit land for a period of 49 years. That therefore, they have acquired the said portion of the suit land by way of adverse possession.

8. The plaintiffs lament that the defendant herein caused the suit land to be transferred into her name before confirmation of grant in Oyugis Principal Magistrate’s Court Succession Cause No. 186 of 2016, wherein the plaintiffs’ mother, one Suslia Amolo Ngiela, had lodged an objection to confirmation of the grant issued to the defendant.

9. In her testimony, the 2nd plaintiff herein, Mary Achieng Ngiela (PW1), relied on her supporting affidavit sworn on 25th September 2017. She testified that deceased 1 purchased a portion of the suit land measuring 0. 5 hectares from deceased 2 in 1968 but a transfer of the same was never effected. That they have been occupying and/or cultivating the said portion for a duration of 49 years. That in the year 2017, the defendant herein caused the suit land to be transferred into her name. That as a result, PW1’s mother and other family members are no longer in occupation of the portion of the suit land as they were dispossessed of the same. That it is one Bernard Mboya who currently possesses the suit land and he has constructed a school and residential houses thereat.

10. PW1 relied on the following documents: a copy of the certificate of death of Joseph Ngiela Mbori, a copy of grant of letters of administration issued in favour of the plaintiffs in Kisii High Court Succession Cause No. 406 of 2009, a copy of certificate of official search dated 13th July 2016 in respect of the suit land, a copy of the grant of letters of administration issued in favour of the defendant in Oyugis Principal Magistrate’s Court Succession Cause No. 186 of 2016, a copy of the letter dated 25th May 2017 by the Senior Chief, Kamagak West Location, a copy of certificate of official search dated 21st July 2016 in respect of the suit land, copy of the minutes of the family meeting held on 24th July 2017 and 21st August 2017, written in Luo language, copy of the translated minutes of the family meeting held on 24th July 2017 and 21st August 2017 and a bundle of photographs showing the farming activities undertaken on the portion of the suit land by the plaintiffs (PExhibits 1 to 10 respectively).

11. Further, PW1 relied on the plaintiffs’ supplementary bundle of documents dated 23rd February 2021 and filed on 24/02/2021 S/No 1 (PExhibit 11) and supplementary bundle of defendant’s documents, to wit, Survey Report dated 24th May 2021 and filed on 27th May 2021 (PMFI 12).

12. During cross-examination, PW1 stated that the objection to confirmation of the grant lodged by the plaintiffs’ mother, one Suslia Amolo Ngiela, in Oyugis Principal Magistrate’s Court Succession Cause No 186 of 2016, was withdrawn and the defendant issued with certificate of confirmation of grant. That the suit land is presently registered in the name of Bernard Ouma Mboya. That the defendant sold the suit land and she does not stay thereon.

13. In re-examination, PW1 stated that during the site visit by the Land Registrar (PW3), it was established that the suit land did not exist on the ground. That in lieu thereof, LR No Central Kasipul/Kamuma/7927 existed in the name of Bernard Ouma Mboya. That it is the same parcel of land.

14. PW2, Karilus Mariga Ndaya, adopted his statement dated 18th November 2019 and filed on 25th November 2019 as part of his evidence. He testified that deceased 1 utilized the suit land for a period exceeding 30 years, having purchased the same from deceased 2. That currently, the suit land is occupied by a school, Neema Rawinji Academy.

15. On cross-examination, PW2 stated that although he accompanied the Land Registrar and Surveyor for a site visit, they visited a different parcel of land and not the suit land.

16. PW3, Martin Osano, Sub County Land Registrar, Rachuonyo North, East and South sub counties, testified that subject to a court order dated 25th February, 2021, he visited the land in Registry Index Map Sheet No 29. However, PW1 denied knowledge of the land visited. He therefore, called for a map showing the suit land in which it was discovered that the suit land was contained in Registry Index Map Sheet Number 13. On 7th July 2021, PW3 visited the suit land on Map Sheet Number 13. He noted that the defendant was in occupation of the same. That there was a school and a home thereon. He also noted that the plaintiffs were not in occupation.

17. PW3 further stated that he noticed that the suit land was fraudulently amalgamated with Central Kasipul/ Kamuma/5569, whose size was increased from 0. 12 Ha to 0. 56 Ha. That the same was subdivided into three: LR Nos 7926, 7927 and 7928. That LR No 7927, which sits on the suit land, was further subdivided into LR Nos 8974 and 8975. That Central Kasipul/ Kamuma/5569 originated from the subdivision of LR No 5258 measuring approximately 0. 12 Ha. The witness stated that the proprietor of the suit land did not apply for amalgamation and subdivision of the suit land and Central Kasipul/ Kamuma/5569, which was carried out on 19th December 2017 after the present suit was instituted on 17th December 2017. He produced in evidence a Report, PExhibit 12.

18. During cross-examination, PW3 stated that the suit land is currently registered in the name of the defendant. That Central Kasipul/ Kamuma/ 5569, which is currently registered under the names of one Jenifer Adhiambo Otieno and Samuel Ouko Owino, swallowed the suit land during amalgamation. That PW1 does not have a claim in LR No Central Kasipul/ Kamuma/13 on Map Sheet No 29 where the defendant accompanied him to. That as regards LR No Central Kasipul/ Kamuma /13 on Map Sheet No 13, the same used to exist until 19th October 2017 and PW1 possesses it. That he does not know the proprietor of the latter parcel. He further stated that the defendant was not involved in the amalgamation.

19. The defendant opposed the suit. DW1, Lawrence Otieno, Land Surveyor based at Rachuonyo/Kosele office, testified that together with PW3, they visited the land, located in Registry Map Sheet No 29 of Kamuma Registration Section, on 7th April 2021. That they only found maize plants growing thereon and no school structure. He relied on his Report (DExhibit 8).

20. In cross-examination, the witness stated that he was not aware of the report filed by PW3 (PExhibit 12), but it was pointed out that he was listed thereon as being present during the 2nd site visit. He also denied knowledge of any amalgamation in the suit land and subsequent subdivisions thereof.

21. DW2, the defendant herein, adopted her statement dated 8th March 2021 and filed herein on 16th March 2021 as part of her evidence. In the statement, DW2 stated that the land that the plaintiffs are claiming did not form part of the estate of her late father but belonged to her other relatives. She relied on her list of documents filed on even date, to wit, a copy of certificate of confirmation of grant, a copy of notice of objection to confirmation of grant, supporting affidavit, a copy of grant of letters of administration issued on 21st February 2016, a copy of the certificate of confirmation of grant confirmed on 31st January 2018, a copy of the certificate of search relating to Land Parcel No Central Kasipul/Kamuma/13, still photographs, still photographs capturing the sign post of Rawinji Nehema School, and a Survey Report by Solomon Njoga (DExhibit 1 to 7 respectively).

22. During cross-examination, DW2 insisted that deceased 1 never utilized a section of the suit land as alleged. She averred that the suit land has not been subdivided. She denied selling any portion of the same.

23. That being the close of the parties’ respective cases, the honourable court directed parties to file and exchange submissions.

24. Accordingly, learned counsel for the plaintiffs filed submissions dated 24th October, 2022 on even date and framed twin issues for determination, to wit, whether the plaintiff proved her case on a balance of probabilities and whether the doctrine of lis pendens applies in the instant suit? Counsel submitted that deceased 1 entered into the suit land in the year 1968 pursuant to the land sale agreement entered into between himself and deceased 2. That time started running until the instant suit was lodged on 17th October 2017, 49 years later. Learned counsel submitted that the plaintiff and her witnesses confirmed the exact ground location of the suit land. That there had been fraudulent amalgamation of the suit land with other parcels of land, subdivision and issuance of new title numbers. That the same was done during the pendency of the instant suit. Counsel urged the honourable court to grant the orders as prayed in the originating summons, and further direct that the fraudulent amalgamation of parcel 13 be investigated and those involved be prosecuted. Counsel relied on various authorities including the case of Esther Matoke Mogaka v Richard Ondieki Makori & others, Nyamira ELC No 102 of 2021, to fortify the submissions.

25. Learned counsel for the defendant filed submissions dated 25th October, 2022 on 8th December, 2022 and identified one issue for determination thus: whether or not the claim on the suit land is valid. Briefly, counsel submitted that the defendant has been wrongly sued since she is no longer the administratrix of the Estate of Alexander Mireri, which estate has been wound up. That further, the claim herein relates to a portion of land parcel number Central Kasipul/Kamuma/13 on Registry Index Map Sheet No 29 where the plaintiff claimed that a school is being constructed thereon. That however, the report by the Surveyor indicated that the said land is bushy and uninhabited. That the school is being constructed on another parcel of land, to wit, Central Kasipul/Kamuma/8974. That the plaintiffs have no claim on land parcel number Central Kasipul/Kamuma/13 on Registry Index Map Sheet No 29 on which the defendant is the absolute proprietor, as confirmed by the Land Registrar (PW3). Thus, counsel sought that the instant claim be dismissed with costs.

C. Issues for Determination 26. It is trite law that the issues for determination in a suit generally arise out of either the pleadings or as framed by the parties for the court’s determination; See Galaxy Paints Co Ltd v Falcon Guards Ltd. (1999) eKLR.

27. I have duly considered the entire originating summons, the testimonies of PW1 to PW3 and the plaintiffs’ submissions as well as the testimonies of DW1 and DW2 and the defendant’s submissions. So, the issues for determination are as captured in the case of Wilson Kazungu Katana and 101 others-vs-Salim Abdalla Bakshein and another (2015) eKLR that adverse possession dictates thus;a.The parcel of land must be registered in the name of a person other than the applicant,b.The applicant must be in open and exclusive possession of that piece of land in an adverse manner to the title of the owner,c.The applicant must be in that occupation for a period in excess of twelve years having dispossessed the owner or there having been discontinuance of possession by the owner.

D. Discussion and Determination 28. The plaintiffs’ claim is for a portion of land out of land reference number Central Kasipul/Kamuma/13 measuring approximately nought decimal five hectares (0. 5 Ha) in area, the suit land herein. PW1 produced in evidence a copy of the green card and certificates of official search which indicate that the suit land is contained in Registry Index Map Sheet No 29.

29. However, during the site visits conducted by PW3 and DW1, PW1 identified the suit land as being located in Registry Index Map Sheet No 13. The same was confirmed by PW2 who stated that the suit land is at Rawinji and not Gamba where PW3 and DW1 went for the first site visit. The defendant herself admitted in her replying affidavit on record dated 31st March 2018 that indeed the land that the plaintiff was claiming had an ongoing school construction on one and a half acre portion. It therefore, shows that the defendant knew the exact land that was being claimed by the plaintiff herein. PW3 noted that the suit land in Map Sheet No 13 was fraudulently amalgamated with Central Kasipul/ Kamuma/5569. Indeed, it is a mystery how the sheet numbers got mixed up.

30. This court’s is thus, satisfied that the suit land having been identified on the ground, the plaintiff’s claim is over a definite portion of land being a portion of land reference number Central Kasipul/Kamuma/13 measuring approximately nought decimal five hectares (0. 5 Ha) in area (The suit land herein). The same is contained in Map Sheet No 13 and located within Homa Bay County; see Muthuita v Wanoe & 2 others (2008) 1KLR (G&F) 1024.

31. On the issue of registration, PW1 stated that titles to the suit parcels of land are registered in the name of the defendant. She produced in evidence, a copy of the title deed and green card which revealed that the defendant is the proprietor of the suit land with effect from 7th July, 2018. The same was transferred to the defendant during the pendency of the instant suit, despite this court issuing an order of maintenance of status quo in respect of the suit property on 21st November 2017.

32. In her statement dated 8th March 2021 and filed herein on 16th March 2021, the defendant contended that the land that the plaintiffs are claiming did not form part of the estate of deceased 2 but belonged to her other relatives. I, however, note that this contradicts the defendant’s averments in her replying affidavit dated 31st March, 2018 in which she admitted that the said land belonged to her. At paragraph 7 thereof, the defendant states that:“…in any event, the applicant is only claiming a portion of the said land hence she cannot injunct me from using any part of my landwhich she is not claiming…” (Emphasis added)

33. As regards open and exclusive possession of the suit land, it is settled law that possession can take different forms such as cultivation; see Titus Ong’ang’a Nyachieo v Martin Okioma Nyauma and 3 others (2017) eKLR.

34. PW1 testified that they have been in occupation of the portion of the suit land since 1968. That they have been occupying and/or cultivating the said portion for a duration of 49 years. This is discerned on ground (5) of the originating summons and her testimony. This evidence was also corroborated by PW2.

35. Regarding the third dictate, PW1 stated that they have been in occupation of the suit land since 1968 until 2017 when they were dispossessed. This was corroborated by the evidence of PW2. The defendant, however, denied that the plaintiffs have been utilising a portion of the suit land.

36. The plaintiffs produced photographic evidence (PExhibit 10) as proof of the activities that are being undertaken on the portion of the suit land. Additionally, PW3 confirmed that the plaintiff possesses the said portion of LR No 13 on Map Sheet No 13.

37. Besides, this suit was filed in 2017, forty nine (49) years after the plaintiff entered into the suit land. Clearly, the plaintiff has been in possession of the suit land for a period in excess of 12 years.

38. The defendant’s counsel submitted that the land on which the school is being constructed is parcel number Central Kasipul/Kamuma/8974. This court takes note of the evidence of PW3 that the suit land was fraudulently amalgamated with C.Kasipul/Kamuma/5569, which swallowed the suit land and whose size was increased from 0. 12 Ha to 0. 56 Ha. That the same was then subdivided into three parcels, to wit: LR Nos. 7926, 7927 and 7928. That LR No 7927, which sits on the suit land, was further subdivided into LR Nos 8974 and 8975.

39. Notably, the said amalgamation and subdivision was carried out on 19th December 2017, after the present suit was instituted on 17th December 2017.

40. Evidently, the said amalgamation and subsequent subdivisions and issuance of new parcel numbers was orchestrated to defeat the ends of justice. The title to the suit land had ceased to exist as an independent title upon amalgamation.

41. The defendant did not produce any evidence to controvert the assertions of PW3. Thus, the evidence of PW3 is treated as gospel truth.

42. This court subscribes to the decision in Odd Jobs v Mubia [1970] EA 476 where the Court of Appeal for East Africa held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision. The said decision was followed by the Court of Appeal in the case of Vyas Industries v Diocese of Meru [1982] KLR 114, among other authoritative pronouncements.

43. This court therefore, finds that the amalgamation of LR Nos. Central Kasipul/Kamuma/5569 and Central Kasipul/Kamuma/13 was done illegally. The said amalgamation and subsequent subdivisions are hereby cancelled pursuant to Section 80 of the Land Registration Act, 2016 (2012) and as envisioned in paragraph 6(f) hereinabove.

44. This court further orders and directs the Director of the Survey to revert the two parcels to their original state that is LR Nos. Central Kasipul/Kamuma/5569 and Central Kasipul/Kamuma/13.

45. Plaintiffs’ counsel has urged this honourable court to direct that the fraudulent amalgamation of parcel 13 be investigated and those involved be prosecuted. It is not in dispute that the office of the Directorate of Criminal Investigations is an independent department; see Kenya Commercial Bank Ltd. and 2 others v Commander of Police and Director of Criminal Investigations Department &another (2012) eKLR.

46. Indeed, a party coming to court must seek orders in furtherance of justice but not with ulterior motives; see Kuria & 3 others v Attorney General (2002) 2 KLR 69. For a party to seek such an order, there must be both a factual and a legal basis. The same has been established hereinabove.

47. Thus, this court hereby directs the Director of Criminal Investigations, to carry out investigations to establish the persons involved in the illegal amalgamation of the suit land herein and take appropriate action.

48. It is my considered view that the plaintiffs have demonstrated that they have been in peaceful and continuous enjoyment and use of the portion of the suit land in excess of twelve years. So, the defendant has been dispossessed thereby; see Halsbury’s Laws of England 4th Edition Volume 28.

49. Section 107 of the Evidence Act Chapter 80 Laws of Kenya provides that he who alleges must prove; see also Wilson Kazungu Katana case (supra).

50. In Kirugi and anothervKabiya and 3 others (1987) KLR 347, the Court of Appeal held that the burden was always on the plaintiff to prove his case on the balance of probabilities.

51. To that end, it is the finding of this court that the plaintiffs have proved their claim against the defendant on a balance of probabilities. They are entitled to the orders sought in the originating summons.

52. Accordingly, I enter judgment for the plaintiffs against the defendant in terms of orders 1, 2, 3, 4 and 5 sought on the face of the Originating summons and as stated in paragraph 6 (a), (b), (c), (d) and (e) hereinabove.

53. It is so ordered.

DELIVERED, DATED AND SIGNED AT HOMA BAY THIS 7TH DAY OF MARCH 2023G.M.A ONG’ONDOJUDGEPresentPlaintiffDefendantMs. Aluoch Odera, instructed by Ms. Ochwal, Learned Counsel for the plaintiffMr. Anyul, Learned Counsel for the defendant