[2023] KEELC 22652 (KLR)

Sangora (Suing on Behalf of Hesbon Nyakiege Sangora alias Nyakiege Sangora) & another v Aliwa (Sued on her Own Right and as the Successor of the Estate of the Late John Geko Makori Aliwa) & 2 others (Environment & Land Case 9 of 2019) [2023] KEELC 22652 (KLR) (3 July 2023) (Judgment)

Neutral citation: [2023] KEELC 22652 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment & Land Case 9 of 2019

MN Kullow, J

July 3, 2023

Between

Charles Okiri Sangora (Suing on Behalf of Hesbon Nyakiege Sangora alias Nyakiege Sangora)

1st Plaintiff

James Sangora

2nd Plaintiff

and

Elizabeth Makori Aliwa (Sued on her Own Right and as the Successor of the Estate of the Late John Geko Makori Aliwa)

1st Defendant

County Land Registrar

2nd Defendant

Hon. Attorney General

3rd Defendant

(ELIZABETH MAKORI ALIWA (Sued on her own right and as the successor of the estate of the late JOHN GEKO MAKORI ALIWA)

Judgment

1. The Plaintiffs commenced this suit by way of an Originating Summons dated 18th February, 2019 against the Defendants seeking the determination of the following ISSUES: -i.A Declaration that the deceased and/or 1st Defendant’s right to recover a portion measuring 16. 64Ha out of 23. 5Ha viz original parcel SUNA WEST/ WASWETA II/171 which parcel has culminated into parcel L.R. SUNA WEST/ WASWETA II/929 and 930 respectively is barred under the Limitation of Actions Act Cap 22 Laws of Kenya and her title over a portion in occupation/ use of the Plaintiffs thereto extinguished on the grounds that the Plaintiffs herein have openly, peacefully and continuously been in occupation/ use and/or partly in possession of the aforesaid portion of L.R. No. SUNA WEST/ WASWETA II/ 171 currently 930. ii.That there be an Order that the Plaintiffs be registered as the proprietors of the portion measuring 11. 75Ha of parcel SUNA WEST/ WASWETA II/ 171 in place of the 1st Defendant and the register thereof be rectified to reflect the Plaintiffs ownership of the aforesaid 11. 75Ha under the Plaintiffs names which original parcel has culminated into Nos. 929 and 930 respectively.iii.That the 1st Defendant herein be ordered to execute all the requisite papers necessary to have the Plaintiffs registered as the owners of the portion of L.R. SUNA WEST/ WASWETA II/ 171, currently subdivided into 929/ 930 respectively measuring 11. 75Ha, decreed by the Court, in default, the Deputy Registrar and/or court Executive Officer be at liberty to execute all such necessary documents to give effect to the Judgment and/or Decree of the court.iv.That there be an Order to nullify the irregular subdivisions of parcel L.R No. SUNA WEST/ WASWETA II/ 929 and 930, to its original and the register be rectified to apportion the Plaintiffs’ 11. 75Ha as prayed out of the original measurement of 23. 5Ha.v.Costs of the Originating Summons be borne by the 1st Defendant.vi.Such further and/or other orders be made as the court may deem fit and expedient in the circumstances.

2. The Originating Summons is premised on the 13 grounds on its face and on the 1st Plaintiff’s Supporting Affidavit sworn on even date, on behalf of his brother Nyakiege Sangora who is mentally retarded. It is his claim that the original parcel No. SUNA WEST/ WASWETA II/ 171 measuring 23. 5Ha was jointly registered in the names of Oloo Muongo (Deceased) and Nyakiege Sangora. At the time of adjudication, it was agreed that each of the proprietors would get ½ share from the 23. 5Ha of the original land No. 171.

3. However, they found out that from the Application for apportionment dated 12/4/1974, which showed that Oloo Muongo was to take a portion measuring approx. 13. 5Ha out of the 23. 5Ha while Sangora would get approx. 10. 0Ha out of the total land. Be that as it may, the 1st Defendant has since acquired 16. 64Ha out of the total land, currently registered as parcel No. SUNA WEST/ WASWETA II/ 929 leaving the plaintiffs with a portion measuring 6. 86Ha, currently registered as parcel No. SUNA WEST/ WASWETA II/ 930.

4. It is the Plaintiffs’ claim that they have been in peaceful, open and continuous occupation and use of a portion of the suit land measuring approx. 11. 75Ha out of the 23. 5Ha for a period of over 40 years. They thus contend that they have acquired ownership of the said portion measuring 11. 75Ha by way of prescription/ adverse possession. He deposed that their entry into the parcel land was a result of the same being ancestral land.

5. It is further his claim that the 1st defendant and her deceased husband, John Makori; fraudulently acquired a portion of the suit land measuring 16. 64Ha, purporting that the same was acquired by way of gift. However, the said acquisition as a gift as alleged has not been reflected on the Green Card or any document thereof. He also stated that no succession was done in respect to the estate of Oloo Muongo and thus posited that the 1st Defendant acquired the suit land without following the due process hence the need to nullify the subdivision of the 2 land parcels Nos. 929 and 930 arising from the subdivision of the original parcel No. SUNA WEST/ WASWETA II/ 171.

6. With regards to his claim on adverse possession; he maintained that the change of ownership from the late John Makori to his wife (1st defendant) did not stop or interrupt the time for adverse possession. He thus urged the court to declare that they have acquired ownership over a portion of the subject matter measuring 11. 75Ha and order that they be registered as the proprietors thereof.

7. The 1st Defendant filed Replying Affidavit sworn on 12/07/2019, in response to the Originating Summons. She confirmed that the original parcel of land No. 171 was jointly registered in the names of Oloo Muongo (since deceased) and Nyakiege Sangora alias Hezbon Nyakiege Sangora, following the completion of the adjudication process.

8. It was however her contention that the original parcel No. 171 was subdivided into 2 portions, No. 929 and 930 during the lifetime of the late Oloo Muongo; parcel No. 929 was registered in the name of the late Oloo Muongo while No. 930 was registered in the name of Nyakiege Sangora. Oloo Muongo being the absolute registered and beneficial owner of the suit parcel No. 929, sold the said portion to her late husband, John Geko Makori and thereafter transferred and registered the same in his name.

9. It is further her claim that parcel No. 930 was registered in the name of Nyakiege Sangora, who has been in occupation and use of the said portion together with the plaintiffs herein. She therefore denied the averments by the plaintiff that they have been in occupation of any portion of parcel No. 929 at all, a fact which she averred was confirmed by the Plaintiffs at paragraph 8 of their Supporting Affidavit and thus dismissed the Plaintiffs’ claim based on adverse possession as misconceived and legally untenable.

10. In further response to the plaintiffs’ claim on adverse possession; it was her contention that the claim is legally untenable for the reason that the plaintiffs have challenged her title to the suit property on the basis that the same was unlawfully and fraudulently acquired and registered in the name of the late John Makori. In addition, it was her contention that the Plaintiff have never resided on the suit land but have only been interfering with the beacons and boundaries of the suit land. She further stated that the Plaintiffs have instituted a similar suit in respect of the subject matter vide Migori ELC Case No. 193 of 2017.

11. On the capacity of the plaintiffs to sue of behalf of Nyakiege Sangora; she deposed that no suit can be filed/ commenced on behalf of a mentally retarded person without the appointment of a Guardian Ad Litem by an Order of the court. In conclusion she dismissed the plaintiffs’ claim on adverse possession as being premature, legally untenable and thus urged the court to dismiss the claim with costs.

TRIAL 12. The matter proceeded for the Plaintiff’s case on 19. 01. 2022; the 1st Plaintiff testified as PW1, he adopted his supporting affidavit as evidence in chief. He restated that the original land parcel was No. Suna West/ Wasweta II/171 measuring 23. 5Ha and the same was registered in common; in the names of Oloo Mwongo and Nyagieke Sangora.

13. It was his claim that the Defendant claimed his rightful share portion of the said land after the death of Oloo Muongo which happened in 1990, that the deceased John Makori took 16. 6Ha of the entire portion and only left them with 6. 8Ha. He further stated that his brother Nyagieke Sangora, who owns part of the suit land is mentally retarded and is about 75 years.

14. He also produced the documents filed on 19/2/2019 as PExhibits 1-15 in support of his case as follows; judgment and proceedings in Migori CR Case No. 13 of 2014 as Pexh. 1, Letter dated 18/6/2012 as Pexh. 2, Ministry of Lands Letter dated 14/7/2012 as Pexh. 3, Title Deed as Pexh. 4, Adjudication Record dated 1/11/2000 as Pexh. 5, Application for Consent dated 1/1/2000 as Pexh. 6, Mutation dated 26/1/1975 as Pexh. 7, Green Card dated 24/4/1973 as Pexh. 8, Medical Report dated 21/5/2014 for Hezbon Nyakiege Sangora Pexh.9, Green Card for parcel Suna West/ Wasweta II/929 as Pexh. 10, Green Card for Suna West/ Wasweta II/930 as Pexh. 11, a Copy of Search for Suna West/ Wasweta II/ 930 as Pexh. 12, Certificate of Search for Suna West/ Wasweta II/ 929 as Pexh. 13, Application for Caution dated 12/4/1975 as Pexh. 14, a Copy of the map as Pexh. 15 in further support of their case.

15. On cross-examination; he reiterated that the original suit parcel was No. Suna West/ Wasweta II/ 171, registered in the names of Oloo Mwongo and Hezbon Sangora but has since been subdivided into parcel Nos. 929 and 930. He confirmed that from the Green Card produced, parcel No. 929 was registered in the name of John Geko Makori while No. 930 was registered in the name of Hezbon Nyakiege Sangora.

16. He however denied the claims by the defendants that each party lived on their distinct parcel and stated that the defendants had encroached into their rightful portion.

17. He further stated that his elder brother Hezbon Sangora had been taken ill long time ago and he was adjudged on 21/5/2014. That he was thereafter granted letters ad litem though he could not recall the date. The Plaintiff thereafter closed his case.

18. The Defence Case proceeded for hearing on 09/11/2022. The 1st Defendant testified as DW1. She also stated that the suit land was her property and that she had been living on the same since the death of her husband. She also maintained that the plaintiff has his own separate parcel No. 930, and accused him of interfering with her possession and occupation of her rightful land by trespassing into the land and cutting trees.

19. She denied the claims of fraudulent transfer of the suit land and stated that the land was transmitted to her after she filed for succession following the death of her husband.

20. She also produced the documents filed in court as DExhibits 1- 24 in further support of her case.

21. On cross-examination, she confirmed that the land was originally parcel No. Suna West/ Wasweta II/ 171 but was not sure of the acreage. She further stated that the late Oloo Mwongo gifted the land to his late husband before his death and the subdivision thereof, of the original parcel, was done by the said Oloo Mwongo before his death.

22. She reiterated that her suit parcel No. 929 measures approx. 16. 64Ha and maintained that she been in living on parcel No. 929 while the Plaintiff occupy parcel No. 930. It was also her testimony that her late husband purchased the suit land parcel No. 929 for a consideration price of Kshs. 10,000/= even though he could not confirm the acreage bought. The Defence thereafter closed their case.

23. Upon close of the defence case; both the plaintiffs and the 1st Defendant filed their rival submissions and authorities which I have read and considered in arriving at my decision.

ANALYSIS AND DETERMINATION 24. I have considered the pleadings, the evidence and the submissions filed herein in totality and it is my considered view that the issues arising for determination are as follows: -a.Whether the Plaintiffs herein have the capacity to institute the instant suit on behalf of one Hezbon Nyakiege Sangora.b.Whether the suit herein is res judicatac.Whether the Plaintiffs have proved their claim of Adverse Possession.d.Whether the Plaintiffs are entitled to the reliefs sought.e.Who should bear the costs of the suitI. Whether the Plaintiffs herein have the capacity to institute the instant suit on behalf of one Hezbon Nyakiege Sangora

25. It is the Plaintiffs contention that one Hezbon Nyakiege Sangora alias Nyakiege Sangora is mentally retarded and they are thus instituting the instant suit on his behalf. They produced a Medical Report from Oasis Doctors Plaza dated 21/5/2014; which confirmed that the said Nyakiege Sangora was mentally unfit to undertake any legal proceedings on his own behalf in support of the said allegations.

26. The 1st Defendant on the other hand maintained that there was no proof adjudging the said Nyakiege Sangora to be of unsound mind and further that the Plaintiffs did not follow the due process as statutorily required before filing the instant suit on behalf of the said Nyakiege Sangora.

27. A challenge on the capacity of a party to institute a claim goes to the root of the court’s jurisdiction to entertain the dispute as filed. It is therefore important for this court to first determine whether the Plaintiffs herein have the requisite capacity to institute the suit on behalf of one Nyakiege Sangora as alleged.

28. The legal framework on the capacity to sue on behalf of persons of unsound mind and the procedure to appoint a guardian for the estate of a person adjudged to be lacking mental capacity is a legal process governed by sections 2,26 and 27 of the Mental Health Act and Order 32 Rule 4 and 15 of the Civil Procedure Rules. A party seeking such an order must file an originating summons and or a petition before the High Court. An inquiry must be made and the person alleged to be of unsound mind has to appear before the court for such an inquiry. See MMM –vs- AMK [2016] eKLR, JWA –vs- MWK [2020] eKLR.

29. Order 32 Rule 15 of the Civil Procedure Rules provides as follows: -“15. The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.”

30. In MGG –vs- Gateway Insurance Co. Ltd & 2 Others [2020] eKLR the Court of Appeal held the appellant lacked capacity to file the suit on behalf of her husband without seeking to be appointed a guardian ad litem or manager under Mental Health Act before filing the suit. The court thus proceeded to dismiss the appeal on that account.

31. Further, Kuloba J. (as he then was) in the case of JOHN PATRICK MACHIRA v PATRICK KAHIARU MUTURI [2002] eKLR stated as follows: -“Questioning one’s mental health is a serious thing. He who questions another’s mental well-being must demonstrate the basis of the question. Everybody is presumed to be of sound mind unless and until the contrary is shown on credible evidence. That is why there are stringent provisions in the Mental Health Act (Cap 248) setting out a laborious process by which a conclusion is to be reached concerning a person’s state of mind. That process has not been embarked upon in the instant case, and no medical evidence has been furnished to the court to support any allegation putting the mental health of the defendant in doubt and to rebut the initial presumption of sanity. The prima facie material has not established anything on which the court at this stage at least hold that there is a viable defence that the defendant, through disease affecting his mind, was incapable of knowing at the time of entering into any deal with the plaintiff what he was doing, or he was incapable of understanding what he was doing or of knowing that he ought not to do what he did. The doctor’s letter to the world at large, is not sufficient evidence in this case.”

32. I have carefully looked at the documents produced as exhibits by the court in support of their case and I do note that the Plaintiffs only produced a copy of the Medical Report dated 21/05/2014. There is no evidence that the plaintiffs strictly complied with the statutory procedure as outlined above; there was no Guardian Ad Litem produced or an Order of the court outlining the inquiry in respect of the mental status Sangora Nyakiege or adjudging Nyakiege Sangora as being of unsound mind.

33. The statutory provisions and Rules are intended to ensure that no man is adjudged to be of unsound mind without proper judicial inquiry with the assistance of medical experts. Guided by the abovementioned case, the medical report dated 21/05/2014 as a stand-alone document is not sufficient evidence of the mental status of the said Nyakiege Sangora, especially when the said report was done in the year 2014 while the suit was filed in the year 2019. In the absence of proof thereof, I do find that the Plaintiffs lacked the requisite capacity to institute the suit on behalf of one Nyakiege Sangora. The suit as filed therefore is premature.

II. Whether the suit herein is res judicata 34. It is the Respondent’s contention that the suit herein is res judicata pursuant to section 7 of the Civil Procedure Act for the reason that the cause of action has been heard and determined in previous suits, to wit, Migori ELC No. 193 of 2017 founded on the issue of fraud in acquiring the registration of the suit land and Kisii HCCC No. 367 of 1997.

35. The elements to be satisfied in the doctrine of res judicata are now well settled. The issues directly and substantially in issue in the instant case must be similar to those in the previous case, between the same parties, same subject matter and the previous suit must have been heard and finally determined by a court of competent jurisdiction.

36. This court has taken the liberty to peruse Migori ELC Case No. 193 of 2017 and it is important to note that the same is still pending for final determination. Further, from a look at Dexh. 20 and 21, it is not certain whether the said case Kisii HCCC No. 367 of 1997 was heard and finally determined on merit. Thus, this court is unable to find that the instant suit is res judicata as alleged by the 1st Defendant.

37. In view of the foregoing, having discussed the two issues touching on the jurisdiction of this court to hear and determine the suit as filed and held that the Plaintiffs lack the requisite capacity to institute the instant suit on behalf of Nyakiege Sangora; it is my finding that discussing the remaining issues would amount to an academic exercise.

Costs of the Suit 38. Costs generally follow the event and, in this case, having held that the Plaintiff lacked the capacity to institute the suit, I find that the 1st Defendant is entitled to costs of the suit.

Conclusion 39. The upshot of the above analysis is that the Originating Summons dated 18th February, 2019 is hereby struck out with costs to the 1st Defendant. It is so ordered!

DATED, SIGNED AND DELIVERED VIRTUALLY AT MIGORI ON 3RD DAY OF JULY, 2023. MOHAMMED N. KULLOWJUDGEIn presence of; -No Appearance for the PlaintiffsNo Appearance for the 1st DefendantCourt Assistant - Tom Maurice/ Victor