[2023] KEELC 21279 (KLR)

Olango v Agoro & another (Environment & Land Case 40 of 2019) [2023] KEELC 21279 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21279 (KLR)

Republic of Kenya

In the Environment and Land Court at Busia

Environment & Land Case 40 of 2019

BN Olao, J

November 7, 2023

Between

Stephen Ouma Olango

Plaintiff

and

Elizabeth S Agoro

1st Defendant

Nathan Mwema

2nd Defendant

Judgment

1. Stephen Ouma Olango (the plaintiff) approached this court vide his plaint dated 21st May 2019 and filed herein on 29th May 2019 seeking against Elizabeth S. Agoro and Nathan Mwema (the 1st and 2nd defendants respectively), judgment against them jointly and severally in the following terms;1. An order of eviction.2. An order of rectification of the plaintiff’s boundary with the defendants.3. Cost.

2. The basis of the plaintiff’s case is that he is the owner of the land parcel No Bukhayo/Bugengi/3101 (the suit land) measuring 0. 12 hectares while the 1st defendant who is the wife to the 2nd defendant is the owner of the land parcel No Bukhayo/Bugengi/6297 measuring 0. 15 hectares. The plaintiff claims that the defendants have jointly, unlawfully and illegally encroached onto the plaintiff’s land thus necessitating this suit.

3. Together with the plaint the plaintiff filed his statement and lists of documents in support of his case.

4. In his statement dated 21st May 2019, he confirms that he is the registered proprietor of the suit land having purchased it in 2003 from one Joseph Wanyama Okaya and has occupied it since 2015. That in 2009, the 2nd defendant up-rooted the boundary hedge which had been planted by the surveyor and that the 1st defendant’s land parcel NO Bukhayo/Bugengi/6297 does not even appear on the map. The incident was reported to the area Assistant Chief but when summoned, the 1st defendant did not turn up. Instead, in 2014 and 2019, the 2nd defendant again interfered with the boundary thereby restricting the plaintiff’s access. In 2018, the plaintiff reported the matter to the Land Registrar who visited the site and ruled that boundary should remain as they were despite noting that defendant’s boundary was un-clear.

5. The plaintiff filed the following documents as per the list dated 21st May 2019:1. Copy of certificate of search for the land parcel No Bukhayo/Bugengi/3101. 2.Copy of certificate of search for the land parcel No Bukhayo/Bugengi/6297. 3.Copy of mutation form for the land parcel NO BUKHAYO/BUGENGI/2228. 4.Copy of minutes of Boundary dispute hearing by the Land Registrar in respect to the land parcel No Bukhayo/Bugengi/3101 and 6207 dated 1st February 2018. 5.Copy a Report by Geomap Surveying Consultants dated 11th January 2019. 6.Map.

6. The plaintiff filed two other lists of documents dated 28th August 2020 and 7th July 2022.

7. In the list dated 28th August 2020, the plaintiff annexed the following documents:1. Mutation Form for land parcel No Bukhayo/Bugengi/1573. 2.Demand letter by Obwoge Onsongo & Company Advocates dated 11th November 2014.

8. In the list dated 7th July 2022, the plaintiff annexed the following documents:1. Surveyor’s report for the land parcels No Bukhayo/Bugengi/3101, 6297, 2878 and 1512 dated 13th July 2022. 2.Mutation Form for land parcel No Bukhayo/Bugengi/1512 registered on 2nd August 1998. 3.Map.

9. The defendants filed separates defences.

10. In her defences dated 18th October 2019 and filed on 22nd October 2019, the 1st defendant denied that the 2nd defendants is her husband. She confirmed however that she is the owner of the land parcel No Bukhayo/Bugengi/6297. She denied having trespassed onto the suit land and put the plaintiff to strict proof thereof adding that she occupies a distinct portion of her land and has never encroached onto the suit land. She added further that she has been in possession of her land long before the plaintiff bought the suit land and that she established the boundaries thereof as per the survey which was conducted during the purchase and which is still in existence to-date and at no time has she trespassed onto the suit land. She asked this court to dismiss the plaintiff’s suit with costs.

11. In her witness statement dated 2nd September 2020, she stated that she bought two adjacent parcels of land from Seferio Mose Eromoto and Vincent Ochebo Emoroto between 1997 and 1999. That the plaintiff also purchased the suit land from the same family but much later than her.

12. The 1st defendant states that since the two parcels of land she bought were adjacent, she combined them. There was no dispute over boundaries until the plaintiff suddenly brought up the issue with the chief. The chief made a decision and also invited the Land Registrar and Surveyor who confirmed the decision to the effect that the boundary was intact and did not need adjustments.

13. The 1st defendant filed a list of documents dated 30th May 2022 to which was annexed the following:1. Copy of the Boundary dispute hearing report in respect of the land parcel NoBukhayo/Bugengi/3101 and 6297 dated 1st February 2018.

14. The 2nd defendant filed his defence dated 5th August 2019 in which he denied all the averments levelled against him in the plaint adding that they do not disclose any cause of action against him and the suit offends the mandatory provisions of Order 3 Rule 2 of the Civil Procedure Rules and Preliminary Objection would be raised. He further questioned the jurisdiction on this court to determine this dispute adding that it is a boundary dispute which ought to be entertained by the Land Registrar in accordance with the provisions of Sections 16(1), 18(2) and 79(1) of the Land Registration Act.

15. In his statement dated 19th August 2020, he confirmed that between 1997 and 1999, he was a witness when the 1st defendant purchased various parcels of land from Seferio Mose Eromoto and Vincent Ochebo Emoroto which parcels were subsequently combined. That the 1st defendant also bought land from the same family but much earlier than the plaintiff. That there was no dispute over boundary until later on when the plaintiff raised the issue of boundaries which was resolved by the chief and Local Administration. The plaintiff was not satisfied by the decision of the chief and invited the Land Registrar and surveyor who adopted the chief’s decision.

16. The hearing of the case commenced before Omollo J on 29th November 2021 when the plaintiff testified.

17. I took over the trial on 12th October 2022 and heard the plaintiffs witness Daniel Betteshazzar Songwa (PW2) and subsequently the case for the 1st defendant. The 2nd defendant did not testify.

18. Both the parties adopted as their evidence the contents of their respective statements and produced the documents filed herein.

19. In support of the plaintiff’s case Daniel Betteshazzar Songwa (PW2) who described himself as a surveyor working with the firm of Kapanga Land Surveys & Consultants recalled how he had received instructions to carry out a survey on the suit land. He told the court that the suit land, as per his report dated 13th June 2022 and which he produced as part of the plaintiff’s documentary evidence, has been encroached upon.

20. Submission were thereafter filed by Mr J. V. Jumainstructed by the firm of J. V. Juma & Company Advocates for the plaintiff and by Mr Okeyo instructed by the firm of Okeyo & Company Advocates for the defendants. I wish to place it on record, however, that although Mr Okeyofiled his submission on behalf of both defendants, he is on record only for the 1st defendant. The firm of D. K. Nabulindo & Company Advocates are on record for the 2nd defendant. Indeed on 18th September 2023, Mr Okeyo told the court that he was holding brief for Ms Nabulindo for the 1st defendant.

21. I have considered the evidence by the parties as well as the submission by the counsel for the plaintiff and the 1st defendant.

22. The plaintiff’s claim is that the defendants have jointly trespassed on to the suit land. The Trespass Act provides in Section 3 (1) that:“Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”In Black’s Law Dictionary 10Th Edition, it is defined as:“An unlawful act committed against the person or property of another; especially wrongful entry on another’s real property.”In Clark & Lindsell On Tort 18Th Edition, it is defined thus:“Any unjustifiable intrusion by one person upon the land in possession of another.”Before I delve into the gist of the plaintiff’s claim, an issue of jurisdiction was raised by the 2nd defendant in paragraph 7 of his defence as follows:“In further reply to paragraph 6 of the plaint, the 2nd defendant will raise a Preliminary Objection on a point of law that his Honourable Court lacks jurisdiction to entertain the claim herein as this is a boundary dispute which ought to be entertained by the Land Registrar as provided for under Section 16(1), Section 18(2) and Section 79(1) of the Land Registration Act Cap 300 Laws of Kenya and Plaintiff is put on notice.”It is true that Section 18(2) of the Land Registration Act divests this Court of the jurisdiction to determine a boundary dispute involving registered land.That is the mandate of the Land Registrar. I have however read the report of the Land Registrar Busia MR TOM M. CHEPKWESI dated 1st February 2018 and which is filed as the 1st defendant’s documentary evidence. The relevant portion of that report reads:“The lower part of the dispute relates to the boundary between the complainant’s parcel with another number allegedly arising from the sub-division of Bukhayo/Bugengi/2878 and according to testimonies, was formally owned by the late Vincent Ochebo ... As to this boundary, it is clear that the boundary currently in place is authentic safe (sic) for the lower portion which is unclear owing to the circumstances noted above.Order:Boundaries will be retained as currently established.” Emphasis mine.It is clear from the above that if there is any boundary dispute involving the suit land, then it only involves the parcel No Bukhayo/Bugengi/2878 which is not a subject of these proceedings. And we cannot marry into these proceedings land parcel No Bukhayo/Bugengi/2878 because the proprietor is not a party herein.

23. During the proceeding before the Land Registrar, the plaintiff’s complaint against the defendant was trespass into the suit land. This is captured in his own words thus:“The accused had fenced her land using cedar poles but I was of view that the boundary was not correctly established ....I pray that a re-survey is done and to confirm and correct the boundary. That is all.”It is clear from the plaintiff’s own complaint, and the findings of the Land Registrar as captured above, that the boundary between the suit land and the 1st defendant’s land is in place and is “authentic”. Indeed, the plaintiff was requesting a “re-survey”. The Land Registrar having confirmed that there is an “authentic” boundary, and that being the mandate of the Land Registrar, it follows that this is not a boundary dispute. This becomes a case of trespass and this Court is therefore seized of the requisite jurisdiction.

24. The onus was therefore on the plaintiff, as provided for under Sections 107, 108 and 109 of the Evident Act, to prove that indeed the defendants had trespassed onto the suit land. He called as his star witness DanielBetteshazzar Songwa (PW2) who started by introducing himself as a surveyor working with the firm of Kapanga Land Surveys & Consultants. The witness produced as part of the plaintiff’s documentary evidence, a report dated 13th June 2022 in which it is stated in the last paragraph as follows:“I therefore conclude that parcel No Bukhayo/Bugengi/3101 has been encroached upon.”However, when he was cross-examined by Mr Okeyo on 12th October 2022, he said:“I am not licensed but I am attached to a surveyor. I do not have a license myself.”It turned out that even the report did not have the name of the person who prepared it. Clearly therefore, even if the witness had signed the report, it is not of any probative value to the plaintiff’s case having been prepared by an unqualified person.

25. Most significantly, when the plaintiff was cross-examined by Mr Okeyo on 29th November 2021, he said:“My pleadings does not state extent of encroachment ... The report doesn’t indicate that 6297 has encroached on my land. Part of my complaint is that the 1st defendant has planted kayabas which grow and extend to my path.”

26. Trespass is a fact to be observed on the land. One would have expected the plaintiff to at least produce photographs of the “kayaba which grow and extend to my path”. He did not do so. In any event, his path and the land parcel No Bukhayo/Bungengi/6297 cannot mean one and the same thing.

27. The totality of the plaintiff’s evidence, taken together with the report by the Land Registrar dated 1st February 2018 shows clearly that he has failed to discharge the burden of proving his case.

28. The up-shot of all the above is that the plaintiff’s suit is dismissed with costs to the defendants.

BOAZ N. OLAOJUDGE7TH NOVEMBER 2023JUDGMENT DATED, SIGNED AND DELIVERED ON THIS 7TH DAY OF NOVEMBER 2023 BY WAY OF ELECTRONIC MAIL.Right of AppealBOAZ N. OLAOJUDGE7TH NOVEMBER 2023