[2010] KEHC 3755 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII

Civil Case 156 of 2009

ONGOYA ONDIEK OWINO............................APPLICANT

-VERSUS-

LUCY ATIENO LUMUMBA.........................RESPONDENT

RULING

Land parcel no. Kanyamkago/Kawere 1/1809 was registered in the name of the plaintiff/applicant on 31/5/1995. It measures about 4. 8 Hectares. The parcel was before this part of L.R. no.Kanyamkago/Kawere 1 /68 which belonged to the late Dickson Mwamba. The applicant bought 4. 8 Hectares of it. The deceased failed to transfer the bought portion. The applicant filed a suit inHCCC.no.299 of 1994 at Kisiiand obtained judgment whose terms were that the deceased subdivides and transfers 4. 8. acres of parcel no. 68 to the applicant. Decree “0002” refers. There was no appeal, it would appear, from the decision.

The defendant/respondent claims that parcel no. 68 was family land which was registered in the names of the deceased to hold in trust for himself and his two brothers Oganga Bando and Abonyo Bando who are both deceased; that the deceased sold the land to the applicant without the authority of his brothers. She (the respondent) is the wife of Patrick Lumumba Oganga who died in 1994, having married her in 1986. The said Patrick Lumumba Oganga was the son of Oganga Bando above. The respondents states that parcel no. 68 was ancestral land for this family on which the members, her included, have lived and all the deceased have been buried. She states that all the 3 sons of Bando had distinct portions on plot no. 68, and that her portion is 2. 2. Hectares.

By her Defence and Counterclaim (based on adverse possession) the respondent is challenging the decision of the High court above. She alleges the sale was without the authority of the family. The case was filed in 1994 when she was already married in the family. She did not seek to be joined in it to lay whatever claim she may have had in parcel no. 68. The court cannot allow the re-opening of the suit in this manner. The applicant, by that purchase, obtained a title which by virtue ofsections 27 and 28 of the Registered Land Act (Cap 300), was absolute and indefeasible.

The applicant occupied the land he bought. This is parcel no. 1809. The respondent trespassed onto the land. She was arrested and charged at the Senior Principal Magistrate’s Court at Migori inCriminal Case no. 117 of 2003 (annexture “0003”). The particulars of the charge were that:

“On the 19th day of November 2002 at Harambee village Kawera 1 sub location in Migori District of the Nyanza Province trespassed to the land parcel no. Kanyamkago/Kawere 1/1809 in the name of Ondiek Ongoya Owino and then constructed a structure on the said parcel of land with intent to annoy Ondiek Ongoya Owino who is the owner of the said parcel of land.”

She pleaded guilty to the charge. The facts narrated were that:

“On 19/11/2002 at Harambee village. The complainant, who had gone to look for employment, came back and found someone occupying his land. He made a report to police . The police visited the scene. She was arrested and she could not give an explanation. She was charged with the present offence.”

The respondent agreed the facts as narrated were true. She was convicted on own plea of guilty and sentenced to serve one year on probation, after she mitigated.

The applicant depones that the respondent vacated the land, but returned thereon on May, 2004 following the decision of URIRI LandDisputes Tribunal in case no. 018 of 2004. The respondent took the applicant and Dickson Mwamba Bando to the Tribunal and asked it, among other things, to nullify the sale of parcel no. 1809 to the applicant. The Tribunal made a decision nullifying the sale. It recommended that parcels nos 1808 and 1809 be put together under the original parcel number, no.68, so that

“if possible Lucy Atieno Ongoya gets her share from this large piece, then the buyer Jafeth Ondiek Ongoya also gets his share, then the remaining piece goes to Dickson Mwamba Bando.’’

In effect, the Tribunal was nullifying the High Court decision above. This was something they could not do. Parcel no. 1809 could not be recalled. The respondent had confessed to having trespassed on the land and had been punished by a competent court. The matter was closed. In any case, the Tribunal was not allowed bysection 3(1) of the Land Disputes Tribunal Act(Act no.18 of 1990) to entertain a claim regarding ownership of a registered land.(See Beatrice M’Marete.V. Republic and others Civil Appeal no. 259 of 2000 at Nyeri).

The applicant sued the respondent, whom he claimed to have trespassed on the land since February, 2008. He sought eviction and demolition of the structures she had erected thereon. He further asked for a permanent injunction. With the suit was filed an interlocutory mandatory injunction for the respondent to yield and give vacant possession of the land that pending the hearing and determination of the suit.

The respondent opposed the application and filed Defence and Counterclaim. Her case is that she has had open, continuous, uninterrupted and peaceful occupation of the land in dispute of 2. 5 Hectares of the land in dispute for over 12 years and that the applicant’s claim to it has been extinguished by way of adverse possessor.

Mr. Oguttu represented the applicant and Mr. Minda for the respondent. I have carefully considered their submissions which were based on the skeleton arguments and authorities they filed.

The respondent came to the land in 1986 when she got married to the late Lumumba. By this time, according to her annexture “LAL 2’ the applicant had (in 1979) bought the land from Dickson. She is claiming 2. 5.hectares of what Dickson sold to the applicant, which was 4. 8. Hectares. In 1994 the applicant claimed the entire 4. 8 Hectares in the High Court and got orders. In the annexed Decree, Dickson and all those claiming under him were permanently restrained from interfering with the applicant’s quiet enjoyment of the land he had bought. That case interrupted her possession of the land. In paragraph 6 of the respondent’s replying affidavit she acknowledges the High court case and its decision. When she returned on the land in 2002 she was arrested and charged with trespass, a charge she pleaded guilty to. That was a further interruption. InNjuguna Ndatho.V. Masai Itumo And Others Civil Appeal no. 231 of 1999 at Nakuru it was held that time which has begun to run under the Limitation ofActions Act (Cap . 22) of the Laws of Kenyais stopped either when the order asserts his right or when his right is admitted by the adverse possession. In this case the applicant asserted his right to the land and the respondent admitted that right.

The conditions for the grant of interlocutory injunction were clearly spelt out in the case of Giella .V. Cassman Brown & Co. Ltd [1973] 358. The applicant has to show that he has a prima faciecase, that he will suffer irreparable harm which would not be compensated for by damages, if the injunction is not granted, and if the court is in doubt, it should decide the matter on the balance of convenience.

The applicant seeks a mandatory injunction. Such an injunction can only be granted at this stage of the case in special circumstances.(SeeKenya Breweries Limited and another.V.Washington O.Okeyo, Civil Appeal no. 332 of 2000 at Nairobi). In the case, the Court of Appeal cited with approval the principles of law enunciated in the decision of Locabail International Finance Ltd .V. Agro export and others [1986] 1 ALL ER 901 at page 901as follows:

“ A mandatory injunction ought not be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

This land is in the name of the applicant as absolute owner. The respondent has confessed to be a trespasser and has been punished for it. The High Court has determined the applicant to be the owner and permanently injucted the respondent. I find that, under these circumstances, this is a clear and obvious occasion that merits the grant of an interlocutory mandatory injunction. This is why I allow the application with costs.

Dated, signed and delivered at Kisii this 20th day of January, 2010.

A.O.MUCHELULE

JUDGE

20/1/2010

Before A.O.Muchelule-J

Court clerk-Bibu

Mr. Minda for Mr. Kisera

Mr. Oguttu for applicant

COURT: Ruling in open court.

A.O.MUCHELULE

JUDGE

20/1/2010