[2017] KEHC 4318 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA IN BUSIA

LAND & ENVIRONMENTAL DIVISION

ELC NO. 78 OF 2016

PHILIP AGUNJA AKETCH ..………................……….…..…..…… APPLICANT

VERSUS

JUSTUS OTIENO OREK ……………………………… 1ST RESPONDENT

PASKALIA ACHIENG’ OMORO……….…………...…… 2ND RESPONDENT

IBRAHIM ONYANGO OREK …………………..……….. 3RD RESPONDENT

R U L I N G

1. The application under consideration is a Notice of Motion dated 9/11/2016 filed here on the same date. It is brought under Sections 1A, 1B, 3A, and 63(e) of Civil Procedure Act, Order 40 Rules 1, 2 and 3 of Civil Procedure Rules and all enabling provisions of law. The Applicant – PHILIP AGUNJA AKECH – brought it against the three Respondents – JUSTUS OTIENO OREK, PASKALIA ACHIENG’ OMORO,andIBRAHIM ONYANGO OREK – whom he accuses of interfering with land LR No. EAST UGENYA/MURUMBA/104 which he claims through adverse possession. The Applicants claim of the land through adverse possession had been filed earlier on 22/7/2016 vide an Originating Summons (OS) dated 11/7/2016.

2. At this stage, the prayers for consideration are three (3). And they are as follows:

Prayer 2: The Respondents be and are hereby restrained by themselves, servants or agents howsoever from trespassing, alienating or dealing with the entire LR. No. EAST UGENYA/MURUMBA/104 in possession of the Applicant and also the Respondents by themselves, their servants or their agents howsoever be restrained from interfering with the Applicant’s quiet possession and use of the entire LR No. EAST UGENYA/MURUMBA/104 until the hearing and determination of the suit.

Prayer 3: The Status Quo prior to May 2016 be maintained until the hearing and final determination of the suit.

Prayer 4: The costs of this application be granted.

3. The grounds in support stipulate, interalia, that the Applicant owns the land through adverse possession; that he and his ancestors have used the land openly, peacefully, and as of right since 1956; that though the land is registered in the names of first and second Respondents, the Applicant has sufficient interest in it; that the ownership of the land by 1st and second Respondents is subject to the Applicant’s rights of ownership as an adverse possessor; that the Respondents burnt, or caused to be burnt, the Applicants sugarcane plantation on the land; and that thereafter the 3rd Respondent entered the land and put up a semi-permanent structure.

4. The supporting affidavit accompanying the application amplifies the grounds and provides some background and history. It is clear for instance that the deceased fathers of the parties were disputing over the land.

5. The application was first responded to vide grounds of opposition filed on 29/11/2016. The application is termed vexatious and the Applicant is accused of intending to create a multiplicity of causes of action. The grounds of opposition were filed on behalf of 1st and 2nd Respondents only. The 3rd Respondent filed a response on 7/2/2017. The response is in a replying affidavit dated 6/2/2017. The 3rd Respondent traced the ownership of the land to his great grandfather – RADING ANGUJA – who bequeathed it to his son – MOSES OMORO OREK. Moses in turn bequeathed it to his son – GEORGE OMORO OREK – who in turn passed it to the Respondents. The 3rd Respondent said he has been growing cane on the land since year 2006 and has settled his second wife there.

6 According to the 3rd Respondent, this suit is RES-JUDICATA as a dispute that dealt with similar issues was handled and concluded at the High Court Kisumu sometime back. The suit at Kisumu was said to be Kisumu HCC No. 175 of 1992. He also said that he is the one in actual physical possession of the land to the exclusion of the Applicant. The 3rd Respondent deponed that the houses on the copies of photographs availed as annextures by the Applicant showing some constructed structure on the land are actually showing houses constructed by the 3rd Respondent for his second wife.

7. The application was canvassed by way of written submissions. The Applicant submitted that he has established merits to get an injunction as spelt out in the case of GIELA vs CASSMAN BROWN & CO. LTD [1973] EA 358. Simply put, he has established a prima facie case with a probability of success, shown that he is likely to suffer irreparable loss, and that the balance of convenience would tilt in his favour if considered.

8. It was the Applicant position too that in the past dispute at Kisumu, the father of the Applicant was shown as having occupied the land. He reiterate that he has been on the land for a long time but the Respondents only came to the land last year. The Applicant said he stands to lose and might suffer irreparable loss. The balance of convenience, he said, also tilts in his favour as he is the one in possession of the land.

9. The 3rd respondent submitted that the Applicant has not satisfied the conditions stipulated in Giela’s Case (Supra). His suit is said to be RES-JUDICATA as he has severally instituted suits over the same facts, parties and issues yet all the suits have been conclusively determined by Courts of competent jurisdiction. The 3rd Respondent mentioned that there was Land Case No. 22 of 1968 at District Magistrate’s at Ukwala and another one, being Civil Suit No. 175/1992 at High Court Kisumu.

10. The Applicant was also said to have fallen short of establishing the requisite conditions for adverse possession. He was, for instance, said to have occupied the land forcefully, not peacefully. And such forceful occupation even led to a case in Court with a fine of 600/= being imposed as penalty. There has never been peaceful, uninterrupted occupation. The 3rd Respondent reiterated that he is the one with the title deed and is already using the land.

11. I have looked at the application, the response made, and the submissions filed. I have had a look at the suit too. Essentially, the application seems to be between the Applicant and 3rd Respondent. The 1st and 2nd Respondents did not even file submissions. The 3rd Respondent is the one being said to have invaded the Land. But there was a crucial and critical omission on the part of the Applicant. The 3rd Respondent is not a party to the suit. He was only introduced as a party in the application. A question arises: since the restraining order sought is meant to run until the suit is determined, is the 3rd Respondent going to await the outcome of a case in which he is not a party? And would it be lawful to restrain him when he is not a party in the suit?

12. Obviously, the answer to these questions is NO. The Applicant needed to be more careful. It was not even proper in the first place to include the 3rd Respondent in the application unless leave of Court had been sought to do so. Had such leave been sought and granted, the suit would first have been amended to include the 3rd Respondent as a party before bringing him onboard in the application.

13. But there are other concerns. Both the Applicant and the Respondent claim to be in possession of the land to the exclusion of the other. The Applicant is the one who is seeking a restraining order. Since the 3rd Respondent alleged that the photographs availed by the Applicant are actually showing houses of the 3rd Respondents second wife, I think the Applicant should have gone further to bring evidence to show he is the one in occupation. I have in mind here an official letter or a statement from the area local administrator.

14. As things stand now, I cannot for sure tell who occupies the land. Yet I am supposed to act only on the basis of reasonable certainty. The Applicant was duty-bound to ensure attainment of such certainty.

15. It has been reasonably shown that there has been past dispute over the same land between parties with obvious relationships with the ones currently litigating. The averment concerning these disputes have largely been made by the 3rd Respondent. The Applicant has not said much about them. The Court needed to be told more by him. And in most situations, existing or concluded disputes tend to interrupt the running of time in matters of adverse possession.

16. When all this is considered, it can be seen that even without considering the conditions set in Giela’s Case, the Applicant has not done a good job of persuading the Court that he merits the orders sought in the application. It is for these reasons that I dismiss the application herein with costs.

Dated, signed and delivered at Busia this 19th day of July, 2017.

A. K. KANIARU

JUDGE

In the Presence of:

Plaintiff: ………………………………..……………….……………………

1st Respondent:………..…………………………………………………..…

2nd Respondent:………..………………………………………………….....

3rd Respondent: ……………………………………………………………..