[2021] KEELC 4609 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 195 OF 2014

1. SAID RASI BINDO

2. MZURI RASI

3. WELLINGTON RASI

4. HILLARY KAZUNGU RASI .

5. SAMUEL NGUMA MWANGUMA...............................PLAINTIFFS

VERSUS

1. RIMBA TUNJE RIMBA

2. GEORGE TEMBO OMAR

3. BENARD RIMBA GEORGE..................................DEFENDANTS

JUDGMENT

BACKGROUND

1. By their Plaint dated 13th October 2014 as filed herein on 22nd October 2014, Saidi Rasi Bindo, Mzuri Rasi, Wellington Rasi, Hillary Kazungu Rasi and Samuel Nguma Mwanguma (the Plaintiffs) pray for Judgment against the Defendants for: -

a) A declaration that the Plaintiffs and their Clan members are the legal owners of the suit plots being Plot Nos 796 and 975 and a permanent injunction restraining the Defendants, their clan members, agents, servants, hirelings, heirs or legal representatives from interfering with the Plaintiffs quiet enjoyment, possession and use of the suit plots;

b) An order that the Defendants do remove at their own costs the developments they have on the suit plots and give vacant possession of the suit plots to the Plaintiffs and their Clan members;

c) Exemplary damages for denying the Plaintiffs use, possession and occupation of the land; and

d) Costs of and incidental to this suit.

2. Those prayers arise from the Plaintiffs’ contention that the suit properties belonged to their Mandiri Clan and that the Defendants who are members of the Wamongwe Clan have without any legal right or reasonable claim thereto caused the same to be registered in their name as the owners thereof.

3. But in their joint Statement of Defence dated 30th June 2015 and filed herein on 1st July 2015, Rimba Tunje Rimba, George Tembo Omari and Benard Rimba George (the Defendants) deny that the suit properties belonged to the Plaintiffs and or their Clan as alleged at all and they invite the Plaintiffs to strict proof.

4. The Defendants further aver that the Plaintiffs claim discloses no reasonable cause of action against them and urge the Court to dismiss the same with costs.

The Plaintiff’s Case

5. At the trial herein, the Plaintiffs called one witness who testified in support of their case. The Defendants did not however call any witness.

6. PW1- Said Rasi Bindo is a 95- years old man, a resident of Msumarini and the 1st Plaintiff herein. He told the Court he represented the family of Mwarasi Bindo Mpita of Mandiri Clan and that his father Rasi Bindo had 13 children.

7. PW1 testified that land adjudication was done in their Pingilikani area between 1995 and 1997. His clan filed an Objection in regard to Plot No. 318. He told the Court that the Defendants herein were the descendants of one Nyadzua wa Yawa who was remarried after her husband’s death by one Mpita wa Kadzo. As Nyadzua was not in good terms with Mpita wa Kadzo’s first wife, she left Mtongwe where they lived and came to stay with the uncle of her husband in Mandiri Village.

8. PW1 further told the Court that the said Nyadzua was given a house in the village where she stayed with her sons Tunje Rimba and Nyinge Rimba. The two sons later went to work in Mombasa. When Tunje Rimba came back to the village, he got married and sired a male child- Rimba Tunje Rimba (the 1st Defendant) who is now using the Plaintiff’s land by force.

9. PW1 further told the Court that after the birth of the 1st Defendant Nyadzua wa Yawa went back to stay at Mtongwe in their own land but they still use the land belonging to the Plaintiffs’ Clan. They had now obtained title deeds for the two parcels of land while the Plaintiffs’ Mandiri Clan have no single title in their name.

10. In cross- examination, PW1 testified that he owns Plot No. 711 in Pingilikani. Some people had gone to the land and sub-divided it without his knowledge. He further told the Court that their land had no titles as it was still under adjudication. He was however not aware if he and his Co-plaintiffs obtained authority from the Land Adjudication Office before filing this suit.

Analysis and Determination

11. I have perused and considered the pleadings filed herein, the testimony of the Plaintiffs’ sole witness and the evidence adduced at the trial. I have also perused and considered the rival submissions placed before me by the Learned Advocates for both the Plaintiffs and the Defendants.

12. The Plaintiffs’ claim against the Defendants is for a declaration that the Plaintiffs and their Clan members are the legal owners of Plot Nos. 716 and 975 situated at Pingilikani area of Kilifi County. They crave an order of injunction restraining the Defendants and their Clan members from interfering with their quiet enjoyment, possession and use of the two parcels of land; as well as an order compelling the Defendants to remove their developments on the two parcels of land.

13. In support of their case, the Plaintiffs relied on the testimony of Said Rasi Bindo, the 1st Plaintiff who told the Court he was about 95 years old. It was the testimony of the 1st Plaintiff that he represented the family of Mwarasi Bindo Mpita who hailed from the Mandiri Clan. He told the Court that land adjudication was carried out in the area between 1995 and 1997 when the two parcels were apparently adjudicated to the Defendants.

14. The 1st Plaintiff told the Court that his Mandiri Clan filed an Objection Case No. 55/95/94in regard to Plot No. 318 and urged the Adjudication Committee to have the same registered in the names of his Clan members. The basis of their objection was that the Defendants herein are the descendants of one Nyadzua Wa Yawa who got re-married as a second wife after the death of her first husband to one Mpita Wa Kadzo.

15. The 1st Plaintiff told the Court that since the said Nyadzua was not in good terms with Mpita Wa Kadzo’s first wife, she left Mtongwe where they previously lived and came to stay with the uncle to her husband in Mandiri Village. Nyadzua was then given a house to live in with his two sons Tunje Rimba and another one known as Nyinge Rimba. Tunje Rimba then got married and gave birth to Rimba Tunje Rimba (the 1st Defendant) whom he accused of using force to acquire their Mandiri Clan land yet they have their own place at Mtongwe.

16. From a perusal of the 1st Plaintiff’s written and oral testimonies before the Court, it was not clear what became of the objection proceedings filed by his clan. It was however evident that the suit properties came to be registered in the names of the Defendants following a land adjudication process carried out in the Pingilikani area. From a perusal of the bundle of documents filed herein by the Plaintiffs, it was evident that the objection was filed by one Rashid Rasi on 14th February 1997.

17. Asked whether or not the adjudication process had been completed in the area, the 1st Plaintiff had no idea. He similarly had no idea whether or not they had sought authority from the District Land Adjudication and Settlement Officer prior to the filing of this suit. While the 1st Plaintiff could be excused for failure to comprehend the issues that were before the Court given his advanced age, this Court takes note that the Plaintiffs are duly represented by an Advocate in these proceedings.

18. As it were, the Land Adjudication Act Cap 284 of the Laws of Kenya provides a self-propelling and conclusive process for adjudication of disputes arising from an adjudication process. Thus having filed an objection to the Adjudication Committee on 14th February 1997, it was incumbent upon the Plaintiffs to wait for the determination of the same. If they were still not satisfied with that determination, they were required under Section 29 of the Land Adjudication Act to lodge an appeal with the Minister within 60 days.

19. By being evasive and failing to disclose what became of their objection and/or if the Adjudication Register had been closed, the Plaintiffs have not helped their case. Arising from that failure, this Court can only but come to two conclusions. Either that they filed these proceedings without the leave of the District Land Adjudication and Settlement Officer when their Objection was still pending contrary to Section 30(1) of the Act or that the determination went against them.

20. The said Section 30(1) of the Act provides as follows: -

“Except with the consent in writing of the adjudication Officer, no person shall institute, and no Court shall entertain, any civil proceedings concerning an interest in land in an adjudication Section until the adjudication register for that adjudication section has become final in all respects under Section 29 (3) of this Act.”

21. While indeed it was possible given the effluxion of time that the said Register had been finalized, it was clear to me that the Plaintiffs had not been happy with the determination arrived at from the adjudication process. Sadly, the decision made by the Ministerial Panel on the question of adjudication is final and could not be challenged in the manner they have done herein.

22. It was also not lost to this Court that arising from their prayers and the testimony of their sole witness, the five Plaintiffs herein bring this suit as a representative suit on behalf of their Clan. In that respect, Order 1 Rule 8 of the Civil Procedure Rules provides as follows: -

“(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued by or against any one or more of them as representing all or as representing all except one or more of them.

(2) The parties shall in such a case give notice of the suit to all such persons either by personal service or, where from the number of the persons or any other cause such service is reasonably practicable, by public advertisements, as the Court in each case may direct.”

23. It is clear to me that even as the Plaintiffs herein purport to represent their clansmen in these proceedings, no such notice has been given in compliance with the rules.

24. Finally, while it was clear that the Defendants are now the registered proprietors of the parcels of land known as Kilifi/Pingilikani/716 and 795, there is no prayer made before me to revoke, annul and/or cancel the said titles. Such revocation can only be done where fraud is established in accordance with Section 26(1) of the Land Registration Act 2012 which provides as follows: -

“The Certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the Certificate, and the title of that proprietor shall not be subject to challenge, except: -

a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

25. In the instant matter, the Plaintiffs have neither alleged nor proven any fraud or impropriety and I am unable to find any basis to make the declarations and/or orders sought herein.

26. The upshot is that despite the fact that the Defendants did not testify herein, I did not find any merit in the Plaintiffs suit. The same was clearly bad in law and misconceived. It is dismissed but with no order as to costs.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE