[2023] KEELC 21217 (KLR)

Ochunga v Odaba; Jarden (Interested Party) (Environment & Land Case 92 of 2013) [2023] KEELC 21217 (KLR) (31 October 2023) (Judgment)

Neutral citation: [2023] KEELC 21217 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment & Land Case 92 of 2013

BN Olao, J

October 31, 2023

Between

Everlyne Auma Ochunga

Plaintiff

and

Dixon Odaba

Defendant

and

Adam Khamis Jarden

Interested Party

Judgment

1. Everlyne Ouma Ochunga (the Plaintiff) filed this suit against Dickson Odaba (the Defendant) on 11th November 2019. She sought judgment as follows with respect to the land parcel No Bukhayo/Bugengi/7814 (the suit land) being a resultant sub-division of the land parcel No Bukhayo/Bugengi/3356:1. A declaration that the Defendant is a trespasser on the suit land.2. Vacant possession of the suit land.3. Mesne profits.4. Costs of the suit and interests.

2. The Plaintiff who has filed this suit on behalf of the Estate of her late father-in-law Christopher Menya Ojuma (hereinafter Ojuma) pleaded that the said Ojuma was the registered proprietor of the land parcel No Bukhayo/Bugengi/3356 from which the suit land was excised. That soon after the demise of Ojuma in 2006, the Defendant moved into the suit land and unlawfully erected temporary structures thereon and has since remained on the suit land alleging that he had purchased a portion thereof. It is the Plaintiff’s case that the Defendant’s alleged purchase of the suit land is null and void as it was not sanctioned by the relevant Land Control Board nor evidenced in writing and neither did the Defendant furnish any evidence of consideration paid for the same. And despite notice of intention to sue having been given, the Defendant has refused to give vacant possession of the suit land hence this suit.

3. The Plaintiff filed together with her plaint her brief statement also dated 10th October 2013. Therein, she claims that Ojuma was the proprietor of the original land parcel No Bukhayo/Bugengi/3356 from which the suit land was hived. That soon after Ojuma’S demise in 2006, the Defendant trespassed onto the suit land where he then erected a dwelling structure claiming to have purchased it from Ojuma. However, upon making enquiries from those who ought to have been aware of the transaction, it turned out that No such sale ever took place. The Defendant has therefore been occupying the suit land illegally and has No right to occupy it.

4. The Plaintiff filed the following as her documentary evidence as per the list of documents dated 10th October 2013:1. Demand Notice to vacate dated 22nd July 2013 addressed to the Defendant by the Plaintiff’s advocate. The Notice does not however identify the land to be vacated.2. Letter from Plaintiff’s advocate dated 15th August 2013 and addressed to the Defendant’s advocate requesting for:- Sale agreement

Consent of the Land Control Board

Proof of payment of the purchase price

Witnesses to the sale agreement3. Letter by the Defendants advocate dated 7th August 2013 and addressed to the Plaintiff’s advocate being a response to the letter dated 22nd July 2012.

5. Although the said list of documents purports to contain the Grant of letters of administration to the Estate of Ojuma as well as copies of the titles to the land parcels No Bukhayo/Bungengi/3356 and Bukhayo/bugengi/7814, No such documents were field vide that list.

6. The Defendant responded to the Plaintiff’s suit by filing his defence on 21st July 2016 which was later amended on 29th March 2017 to include a counter-claim as well as to enjoin one Adams Khamis Jarden as an Interested Party.

7. Other than admitting the descriptive paragraphs of the plaint, the Defendant denied each and every allegation levelled against him. He questioned the Plaintiff’s capacity to file this suit as she has No Grant of Letters of administration in respect of Ojuma’S Estate. He pleaded further that he lawfully purchased the suit land adding however that the same was excised from the land parcel No Bukhayo/Bugengi/7038 and the land parcel No Bukhayo/Bugengi/3356 as alleged by the Plaintiff. He added that what he purchased was the land parcel No Bukhayo/Bugengi/7038 for which he paid consideration and took possession thereof from 24th October 2005 todate. Further, that Ojuma died on 27th October 2003 and not in 2006 as alleged by the Plaintiff and at the time of his demise, the land parcel No Bukhayo/Begengi/ 7038 was registered in his name and by then, the plaintiff’s husband one Romanus Juma Acheda was still alive but later died on 19th January 2011 long after the Defendant had taken possession of and developed a plot measuring 110 feet by 110 feet out of the land parcel No Bukhayo/Bugengi/7038 with the knowledge and consent of the Plaintiff and her husband.

8. The Defendant pleaded that Ojuma died on 22nd October 2003 and the land parcel was illegally sub-divided in 2005 to create land parcels No Bukhayo/Bugengi/7814, 7815, 7816 and 7817 before the Grant of Letter of Administration had been obtained with respect to his Estate. He added that at the hearing of this suit, he would require tangible explanation from the Plaintiff about the said Grant of letters of Administration.

9. The Defendant went on to plead that the Plaintiff infact secretly obtained the Grant of Letters of Administration in respect to the Estate of Ojuma on 1st October 2013 long after the land parcel No Bukhayo/Bugengi/7038 had been sub-divided to create the land parcels No Bukhayo/Bugengi/7814, 7815, 7816 and 7817. And in order to defraud the Defendant, the Plaintiff then proceeded to sub-divide the land parcel No Bukhayo/Bugengi/7814 to create three new land parcels being Bukhayo/Bugengi/11699, 11700 and 11701 on 6th January 2015 yet this suit was filed on 11th November 2013 with the knowledge that the suit land was non-existence. That the Plaintiff is being merely discriminatory as there is an agreement signed between the Defendant and the Plaintiff’s late husband for the purchase of the above mentioned portion of land at a consideration of Kshs 120,000 which was duly paid and acknowledged by the late ROmanus Juma Acheda before an advocate of this Court.

10. The Defendant therefore sought the Plaintiff’s suit to be struck out with costs for being frivolous, un-meritorious vexatious and an abuse of this Court’s process.

11. In his counter-claim, the Defendant reiterated the contents of his defence adding that he has always enjoyed vacant possession of the said portion of land measuring 110 feet by 110 feet on which he has constructed a temporary tin house occupied by his agents and servants. He has also put up a steel-gate, perimeter wall, chain link fence and planted blue gum and graveilla trees. On or about 14th August 2016, the Interested Party without any colour of right trespassed onto the said portion and planted trees thereon. On or about 18th August 2016 upon being served with a notice to cease his illegal activities, the Interested party defiantly proceeded to destroy the Defendant’s above mentioned properties occasioning him great loss.

12. The Defendant then proceeds to itemize the particulars of damage as:a.Value of demolished house.b.Value of chain link.c.Value of perimeter wall.d.Value of trees.e.Value of gate.

13. However, the Defendant does not put a value on the above damaged properties other than to add that he has suffered damages and mental anguish.

14. The Defendant further pleads fraud as against the Plaintiff and the Interested Party as follows:1. Pretending to have transacted with regard to the plot when there was No legal transaction.2. The Interested Party pretending to have bought the plot from Everlyne Auma Ochunga yet the Defendant bought it from the Plaintiff’s husband during his life-time.3. Lying that the Defendant has never resided on the said plot.4. Destroying the Defendant’s property including a house so as to destroy evidence of ownership.5. Processing Letters of Administration secretly without the consent of the Defendant.6. Giving misleading information in the succession cause No 410 of 2011 concerning the estate of the late Ojuma the brother to the Plaintiff’s late husband.7. Illegal sub-division of land parcel No Bukhayo/Bugengi/7038 and fraudulently obtaining titles No Bukhayo/Bugengi/7814, 7815, 7816 and 7817 and thereafter, further sub-dividing the land parcel No Bukhayo/Bugengi/7814 into new numbers Bukhayo/Bugengi/11699 (in the name of the Interested Party), 11700 (in the name of the Plaintiff) and 11701 (in the name of Everlyne Achonha) so as to defeat the Defendant’s interest.

15. The Defendant pleaded that he would demand the eviction of the Plaintiff and the Interested Party from his portion of land measuring 110 feet by 110 feet out of the land parcel No Bukhayo/Bugengi/7814 as per the agreement dated 24th October 2005, revocation of the illegally obtained titles, ascertaining of the boundary of the Defendants portion so that he can have quiet possession thereof.

16. The Defendant therefore counter-claimed against the Plaintiff and Interested party for the following remedies:a.Cancellation of LR No’s Bukhayo/bugengi 7814, 7815, 7816 and 7817 as well as other subsequent titles arising out of further sub-divisions including but not limited to LR Nos bukhayo/bugengi/11699, 11700, and 11701 and restoring LR No Bukhayo/Bugengi/7038. b.Specific performance as per the agreement dated 24th October 2005. c.Upon granting prayer (b) above, eviction therefrom.d.Orders as per paragraph (12) above.e.Costs.

17. In support of his case, the Defendant recorded a statement dated 29th March 2017 which he adopted during the hearing. He also produced a list of documents of even date.

18. In his statement, he recorded that on 24th October 2005, he agreed to purchase a portion of land measuring 110 feet by 110 feet from Romanus Juma a younger brother to Ojuma to be curved out of the land parcel No Bukhayo/Bugengi/7038. Romanus Juma was the Administrator to the Estate of Ojuma and the agreement was transacted at the office of Boaz Otanga Advocate where he paid the first instalment and the last instalment was paid on 2nd December 2006 for the whole consideration at Kshs 120,000.

19. Then in 2006, the Defendant developed the said portion by constructing a one bedroom house, toilet, perimeter wall with steel gated as well as planting trees. Later on, the Plaintiff went to him and demanded that they negotiate the purchase price afresh or he forgets about the portion of land. The Defendant declined since he had No pending debt and on 23rd July 2013, he received a letter from the Plaintiff’s advocate asking him to vacate. He responded through a letter by his advocate.

20. When he later went to the Lands Office, he discovered that the land parcel No Bukhayo/Bugengi/7038 had been sub-divided to give rise, to among others, the suit land. The sub-division was suspicious because the registered proprietor Christopher Menya died on 27th October 2003 while the mutation form were prepared in 2005 using his finger-prints yet during his life-time, he used to sign documents. He discovered that the Plaintiff had defrauded him by claiming that the suit land originated from the land parcel No Bukhayo/Bugengi/3356 yet it originated from land parcel No Bukhayo/Bugengi/7038. The Plaintiff also claimed that Christopher Menya was her father in-law yet he was her brother in-law. Further, that the Defendant had never been served with summons in Busia ELC Case No 92 of 2013 and when he was eventually served, he obtained a temporary injunction on 15th August 2016 restraining the Plaintiff from interfering with his plot. However, the Plaintiff in collaboration with the Interested Party trespassed into his compound and planted bananas thereon and destroyed the common boundary forcing the Defendant’s nephew to leave the compound. The matter was reported to the Busia Police Vide OB No 16/17/08/2016 and he recorded his statement.

21. Meanwhile, the Plaintiff and the Interested Party have harvested his trees, pulled down his house and removed his gate even as this matter is in Court.

22. The Defendant filed the following documents in support of his case:1. Land sale agreement dated 24th October 2005. 2.Acknowledgment slips for money paid.3. Photographs of building and fence.4. Mutation Form for sub-division of the land parcel Bukhayo/Bugengi/7814. 5.Mutation Form for the sub-division of the land parcel No Bukhayo/Bugengi/7038. 6.Certificate of death for Romanus Juma Acheda dated 9th May 2012. 7.Demand letter dated 22nd July 2013. 8.Response to demand letter dated 7th August 2013. 9.Mutation Form for land parcel No Bukhayo/Bugengi/7017.

23. And although the Defendant filed statements of his witness, he was the only one who testified in support of his case.

24. He also filed a further list of documents dated 4th April 2018 containing the following:1. List of construction materials and costs.2. Receipt dated 30th March 2006. 3.Receipt dated 18th January 2010. 4.Invoice/Delivery dated 25th March 2006. 5.Invoice/Delivery dated 28th March 2006. 6.Receipt dated 28th March 2006. 7.Receipt dated 25th March 2006.

25. The Plaintiff filed a defence and reply to counter-claim and put the Defendant to strict proof of the averments in his defence. She denied that the Defendant had purchased or was in quiet possession of the land parcel No Bukhayo/Bugengi/7038 and further pleaded that the allegations raised in the defence and counter-claim are malicious and marred in bad faith. She pleaded that the Defendant has never been in occupation of any part of the suit land nor erected a perimeter wall, gate or planted trees as alleged. She also denied any knowledge of the particulars of damage or fraud. The Plaintiff added that the counter-claim is a sham and should be dismissed with costs and judgment entered for her as per her plaint.

26. The record shows that having been enjoined in these proceedings as an Interested Party, Adams Khamis Jarden filed an affidavit dated 14th March 2016 in which he basically stated that he wished to guide this Court as it considers the dispute. I did not see any specific response to the issues pleaded against him.

27. The record further shows that when the matter came up for hearing before Omollo J on 17th November 2021, both the Plaintiff, her counseL Ms Anyango and the Interested party were not present and the Plaintiff’s suit was dismissed with costs.

28. The Defendant then proceeded to testify and closed his case. His counsel Mr Obwatinya then sought time to file his submissions and judgment was fixed for 29th June 2022.

29. However, following an application by the Plaintiff dated 7th February 2022, her dismissed suit was reinstated to hearing.

30. When the matter next came up for hearing before me on 11th July 2023, both the Plaintiff and her counsel were absent. I proceeded to hear the Defendant’s evidence in support of his case and dismissed the Plaintiff’s suit with costs.

31. Submissions were thereafter filed by Mr Obwatinya counsel for the Defendant.

32. I have considered the un-controverted evidence by the Defendant in support of his counter-claim as well as the submissions by his counsel Mr Obwatinya instructed by the firm of Obura-obwatinya & Company Advocates.

33. Other than their pleadings, neither the Plaintiff nor the Interested Party testified in rebuttal of the Defendant’s counter-claim. Pleadings are not evidence. As Madan JA (as he then was) stated in CMC Aviation Ltd v Cruisair LTD (No 1) 1978 KLR 103 [1976-80 1 KLR 835]:“Pleadings contain the averments of the parties concerned. Until they are proved, or disproved, or there is an admission of them or any of them by the parties, they are not evidence and No decision could be founded upon them. Proof is the foundation of evidence. As stated in the definition of “evidence” in Section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven. Averments in No way satisfy, for example, the following definition of “evidence” in Cassell’s English Dictionary, P 394:Anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident to the mind that it is truth.”

34. Other than the fact that the Plaintiffs suit was dismissed with costs on 11th July 2023, it is also clear that neither her nor the Interested party testified in rebuttal of the Defendants counter-claim. The Defendant, in my view, has established his counter-claim against the Plaintiff and his claim against the Interested Party to the standard required in law.

35. This Court therefore makes the following orders in disposal of the parties respective claims:1. The Plaintiff’s suit is dismissed with costs to the Defendant as per the orders issued on 11th July 2023. 2.Judgment is entered for the Defendant as against the Plaintiff and the Interested Party jointly and severally in the following terms:a.Titles No Bukhayo/Bugengi/7814, 7815, 7816, 7817, 11699, 11700 and 11701 are hereby cancelled and restored to title No Bukhayo/7038. b.The Land Registrar and County Surveyor will thereafter register the portion of land measuring 110 feet by 110 feet and on which the Defendant has constructed a building in the name of the Defendant and the title deed be issued to him.c.The rest shall be registered in the name of the Administrator to the Estate of Christopher Menya to hold in trust for the beneficiaries of the Estate or transfer to any previous bonafide purchasers, if any.d.The Plaintiff and Interested Party shall within 30 days of this judgement vacate the portion measuring 110 feet by 110 feet belonging to the Defendant.e.In default of (d) above, the Plaintiff and the Interested Party together with all those acting through them shall be forcefully evicted therefrom.f.The claim for special damages as pleaded in paragraph 12 of the counter-claim is declined because, although some receipts and invoices were produced, the law is that special damages must be specifically pleaded and proved. Paragraph 12 of the counter-claim is silent on the amount of the special damages being claimed.g.The Plaintiff and Interested Party shall meet the costs of the counter-claim.

JUDGMENT DATED, SIGNED AND DELIVERED ON THIS 31ST DAY OF OCTOBER 2023 BY WAY OF ELECTRONIC MAIL AND WITH NOTICES TO THE PARTIES.BOAZ N. OLAOJUDGE31ST OCTOBER 2023Right of Appeal.