[2019] KEELC 2960 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC CASE NO. 109 OF 2015

PLISTA ANYANGO ORERA............................................1ST PLAINTIFF

BENSON OCHIENG’.........................................................2ND PLAINTIFF

VERSUS

PETER OJIGO........................................................................DEFENDANT

JUDGEMENT

1. Plista Anyango Orera and Benson Ochieng Orera, the Plaintiffs, sued Peter Ojigo, the Defendant, through their plaint dated the 24th November 2012, seeking for permanent injunction in respect of East Gem/Anyiko/1386, costs and interest. They aver that they are the registered proprietors of East Gem/Anyiko/1386, the suit land, measuring 0. 7 hectares. That the Defendant had on or about 12th September 2012 trespassed into the said land and started building and demarcating it. That the dispute was handled by the tribunal and the Plaintiffs were victorious.

2. The claim is opposed by the Defendant through his statement of defence and counterclaim dated the 14th January 2013. The Defendant avers that if the Plaintiffs were registered as proprietors of the suit land, then their registration was obtained fraudulently and should be cancelled. That the Defendant appealed the tribunal decision to the Provincial Appeals committee which is yet to be finalized. That the Defendant has been the rightful beneficiary of the suit land being the only living eldest son of the late Paul Abwao, who was the only son of Okatch Abwao, the original owner of the land. That his grandmother Miriam Demba Okanga was inherited by Odhuhu Suji, father and husband to the Plaintiffs, in 1962. That the Defendant’s mother fell ill and Odhuhu Suji took control of her family land; and during land demarcation in 1960’s, he fraudulently caused land parcel East Gem/Anyiko/1040 registered in his name and later subdivided it into 1385 and 1386. The Defendant seeks cancellation/nullification of all entries subsequent to Odhuhu Suji being registered with East Gem/Anyiko/1040; declaration that East Gem/Anyiko/1040 rightfully belong to the Defendant as family property and costs.

3. The Plaintiffs in their defence to the counterclaim denied the Defendant’s claim and insisted that they are the legitimate registered proprietors of the suit land. They prayed for the counterclaim to be dismissed with costs.

4. The Plaintiffs testified on the 14th February 2017 as PW1 and PW2. PW1 testified that she was married by the late Orera Odhuhu in 1974 as the second wife and settled on the land her husband had inherited from his late father, Odhuhu Suji. That Orera Odhuhu subdivided the land East Gem/Anyiko/1040 to 1385 and 1386 and registered the latter with the Plaintiffs and the former with his first wife. That the Plaintiffs have been using their land for cultivation until 2012 when the Defendant trespassed onto it prompting this suit. PW2, a son to PW1 confirmed that testimony.

5. The Defendant testified on 13th November 2018 as DW1. He told the court that the late Odhuhu Suji inherited his stepmother and the suit land that belonged to her was transferred to his name. That the suit land was then taken over by Odhuhu Suji’s sons including the husband and father to the Plaintiffs. That as the suit land belonged to his grandmother, it was to be inherited by his grandfather and thereafter his father and then himself. That he has lived on the land from 2000.

6. The learned Counsel for the Plaintiffs and Defendant filed their written submissions dated 30th November 2018 and 18th March 2019 respectively.

7. The following are the issues for the Court’s determination;

a) Whether the Plaintiffs registration as proprietors of the suit land was fraudulently obtained.

b) Whether the Defendant has established beneficial or legal interest over the suit land or is a trespasser.

c) Who between the Plaintiffs and Defendant is entitled to the prayers sought in their respective claims.

d) Who pays the costs of the Plaintiffs’ suit and Defendant’s counterclaim.

8. The Court has after considering the pleadings filed, oral and documentary evidence tendered by both sides, and the written submissions come to the following conclusions;

a) That the only party(ies) that provided documentary evidence on the ownership and registration of East Gem/Anyiko/1386, the suit land, are the Plaintiffs, who produced a copy of the certificate of official search, title deed and green card as exhibits. That from the said documents, it is clear that the suit land was first registered on the 15th October 1986 in the name of Orera Odhuhu, and was subdivided from plot No. 1040. That it further shows that Orera Odhuhu transferred the land on 2nd July 1991 to Plista Anyango Orera, Benson Ochieng Orera and Jecton Omondi Orera. That the last two were minors then. That though the Defendant claim that the Odhuhu Suji, father to Orera Odhuhu who was husband and father to the Plaintiffs, had fraudulently registered in his name the parent land parcel East Gem/Anyiko/1040 from which the suit land was subdivided, he did not avail any evidence to proof his allegations of fraud. That it is trite law that a party basing his/her claim on fraud must not only plead the particulars, but also tender proof in support thereof to a level above that of balance of probabilities, but below beyond reasonable doubts. That it is instructive to note that there was no objection proceedings filed to challenge the registration of Odhuhu Suji with the land during adjudication, and his title was not challenged or impugned by the time he died in 1969, which was the year of his death from the testimony of Orera Odhuhu, his son, in Siaya Land Disputes Tribunal Case No. 93 of 2006. That further, the title was reportedly transmitted to Orera Odhuhu and no objection proceedings were filed.

b) That though the Defendant claimed in his testimony that East Gem/Anyiko/1040 had been registered in the name of Abwao, he did not avail any documentary evidence to confirm his claim. That even if that was so, and that he was claiming the suit land for the estate of his father or grandmother, then he needed to have obtained a grant, at least Ad Litem, to cloth him with capacity to sue for the estate.

c)That the Plaintiffs’ claim that the Defendant trespassed onto the land in 2012 while the Defendant insists that he has been on the land since 2000. That whatever the year, it is clear the Defendant entry onto the land was on the basis of ownership and or beneficial interest. That the Defendant had not recognized the Plaintiffs’ title to the suit land by the time he took possession and his occupation cannot be adverse to the title of the registered proprietors.

d) That both the Plaintiffs and Defendant have agreed that they are not related. The Defendant entry onto the suit land was unlawful and outright trespass. That further, the Defendant has no beneficial interest over the suit land and should therefore be restrained from interfering with the Plaintiffs’ use and enjoyment thereof. The Defendant having been defeated in the suit and counterclaim should pay the Plaintiffs costs.

9. That the foregoing shows that the Plaintiffs have proved their case against the Defendant, while the Defendant has failed to prove his counterclaim to the standard required. The Court therefore enters judgment for the Plaintiffs against the Defendant in the following terms;

a) That prayers (a) and (b) of the plaint dated 24th November 2012 and filed on the 26th November 2012 are granted.

b) That the Defendant’s counterclaim dated 14th January 2013 and filed on the 16th January 2013 is dismissed with costs to the Plaintiff.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 19TH DAY OF JUNE 2019

In the presence of:

Plaintiffs Absent

Defendant Absent

Counsel M/s Onsongo for Nyatundo for

Plaintiff and M/s Adwar for Ombati

For Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE