[2018] KEHC 6474 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 313 OF 2009

SIMON NGAO MBITHI..................................................PLAINTIFF

VERSUS

DANIEL KIILU NGOMO............................................DEFENDANT

JUDGEMENT

Introduction

1. In his Plaint dated 10th October, 2009, the Plaintiff has averred that he is the registered proprietor of land known as Muputi/Kimutwa/1820; that sometimes in the year 2007, the Defendant trespassed on the suit land and that a permanent injunction should issue restraining him from trespassing on his land.

2. In his Statement of Defence, the Defendant averred that the suit land was divided into two after he purchased it from the Plaintiff and that the land was later on sub-divided between Makilu Christian Church ACC(E.A) and the Defendant.

The Plaintiff`s Case

3. The Plaintiff, Pw 1, informed the court that he agreed to sell to the Defendant plot number 1646 for Kshs.60,000/- ; that the Defendant paid part of the purchase price by installments but was unable to pay the entire amount and that the total amount the Defendant paid was Kshs.46,000/-.

4. It was the evidence of Pw 1 that he decided to give to the Defendant a portion of the suit land which was equivalent to the amount he had paid. Pw 1 informed the court that the Defendant agreed in writing to the arrangement and that is when he engaged a surveyor to sub-divide the suit land into two portions. Pw 1 stated that after sub-division, he transferred to the Defendant parcel number 1819 while plot number 1820 remained in his name.

5. It was the evidence of Pw 1 that he has since given to the Church parcel number 1820 and that in the year 2016, the Defendant started encroaching on parcel number 1820.

6. In cross-examination, Pw 1 stated that the Defendant changed the boundaries that they had agreed upon demarcating parcel number 1819 and 1820; that he agreed to refund to the Defendant Kshs.12,300 because the land had appreciated and that the church paid him the said Kshs.12,300/-.

The Defence Case

7. The Defendant, Dw 1, informed the court that he bought the suit land from the Plaintiff on 8th November, 1992; that the purchase price was Kshs.60,000/; that he paid a total of Kshs.46,000/- by installments and that the Plaintiff sub-divided and demarcated the suit land together with the Chief in his absence.

8. According to Dw 1, the agreement he had with the Plaintiff was in respect to the entire land being parcel number 1646 and not a portion thereof; that the Sale Agreement was breached by the Plaintiff when he sub-divided parcel number 1646 into two portions and that he has lived on the suit land since the year 2000.

9. Dw 1 informed the court that he was forced by the Sub Chief to sign an agreement allowing the sub-division of the suit land into two portions; that he is the one who paid the surveyor to sub-divide the land and that the parcel of land number 1820 was a small portion compared to the balance of the purchase price.

10. In cross-examination, Dw 1 stated that he is in possession of a Title Deed for plot number 1819 measuring 0. 5Ha while plot number 1820 measures 0. 18Ha; that he was forced to sign the agreement of 11th June, 1998 and that the Church had agreed to sub-divide parcel number 1820 because it was too big. It is on that basis that an agreement dated 30th December, 2000 was signed.

11. The Defendant`s son, Dw 2, informed the court that his father bought the suit land in 1992 and that they took possession of the land in 1993. According to Dw 2, his father paid Kshs.46,000 for the land and that the Chief in the company of policemen, sub-divided the suit land by planting sisal, thus diving the land into two portions. According to Dw 2, the balance of Kshs.14,000/- that the Defendant owed the Plaintiff was not proportionate to the land that was excised out of parcel number 1646 and given to the Church.

12. After holding a meeting with the Church, it was the evidence of Dw 2 that they agreed to have the boundaries of plot number 1820 altered to reduce its size and that the Plaintiff agreed to the sub-division and that the Plaintiff signed the transfer forms in respect to the sub-division of parcel number 1820 together with the application of the Consent of the Land Control Board of sub-division.

13. The Plaintiff`s brother, Dw 2, informed the court that he is a pastor. According to Dw 3, he chaired a meeting on 30th December, 2000 in respect of the balance of the purchase price of Kshs.14,000/- that the Defendant was owing to the Plaintiff; that it was agreed that the Plaintiff would further subdivide parcel number 1820 and transfer a portion to the Defendant and that they demarcated the said sub-division by planting sisal plants.

Submissions

14. The Plaintiff’s Counsel submitted that under section 6 of the Land Control Act, a transaction involving agricultural land is void for all purposes in the absence of a consent of the Board; that the consent of the Board should have been obtained within six months from the date of the agreement and that the sale of 30th December, 2000 between the Plaintiff and the Defendant is a nullity counsel submitted that the Plaintiff having been issued with a Title Deed, he is entitled to the protection of the law.

15. The Defendant`s counsel submitted that the Defendant has always been in occupation of parcel of land known as 1646; that it is the Plaintiff who trespassed on the suit land and had it sub-divided into two portions; that in any event, the Plaintiff agreed to have parcel number 1820 sub-divided and that the consent of the Land Control Board was sought pursuant to the agreement of 30th December, 2000.

Analysis and Findings

16. It is not in dispute that the Plaintiff was originally registered as the proprietor of land known as Muputi/Kimutwa/1646 measuring 0. 7Ha. It is also not in dispute that on 8th November, 1992, the Plaintiff and the Defendant entered into an agreement of sale of the said land for Kshs.60,000/-.

17. Both the Plaintiff and the Defendant were in agreement that the Defendant paid to the Plaintiff Kshs.46,000/- by installments. It was the evidence of the Plaintiff that on 23rd August, 1997, and with the concurrence of the Defendant and the area Chief, they agreed to sub-divide parcel number 1646 into two portions so as to have the Defendant registered as the proprietor of a portion that was equivalent to the amount that he had paid. Consequently, plot number 1646 was sub-divided into portions number 1819 and 1820 measuring 0. 54Ha and 0. 18Ha respectively.

18. The official search for parcel of land known as 1646 shows that the title for the said land was closed on 21st July, 1998. Both title deeds were issued to the Plaintiff on 21st July, 1998. However, the Title Deed for parcel number 1819 was issued to the Defendant on 5th June, 2014.

19. The Defendant`s case is that the acreage for parcel number 1819 that is registered in his favour does not correspond to the money he paid to the Plaintiff. It was his evidence that when he protested, the Plaintiff agreed to sub-divide portion number 1820 which he had bequeathed to a Church. It was to be sub-divided into two so that one portion could be added to portion number 1819. The Defendant has sought for a mandatory injunction compelling the Plaintiff to execute the transfer documents for plot number 1820 to him.

20. The Defendant admitted that he did not pay the entire purchase price of Kshs.60,000/-. Having paid only Kshs.46,000/-, the Defendant was in breach of the Agreement in respect to parcel number 1646. Consequently, he cannot claim that parcel of land number 1820, which was a portion of parcel number 1646 should be transferred to him. If anything, the Defendant would have lost the entire parcel of land, with the only recourse being for a refund of the paid amount.

21. The Defendant informed the court that in any event, the Plaintiff agreed vide the agreement of 30th December, 2000 to have parcel number 1820 sub-divided into two portions because it was not commensurate with the balance of the purchase price.

22. That might have been so. However, there is no evidence before me to show that the consent of the Land Control Board was ever obtained for the sub-division of parcel number 1820 within six months, contrary to the provisions of the Land Control Act. Having failed to obtain the consent of the Board within the requisite period of six months, the purported agreement for the sub-division of parcel number 1820 is null and void(See Section 6 and 8 of the Land Control Act).

23. Even if the Agreement of 30th December, 2000 was valid, the same cannot be enforced by the court because the Counter-Claim by the Defendant has not sought to enforce the said agreement. Indeed, the Defendant`s Counter-Claim is in respect to the entire parcel of land known as 1820 which is registered in favour of the Plaintiff.

24. For those reasons, I find and hold that the Plaintiff is the one entitled to a parcel of land known as Muvuti/Kimutwa/1820. Consequently, the Plaintiff`s Plaint dated 19th October, 2009 is allowed in the following terms;-

a. A permanent injunction is hereby issued restraining the Defendant either by himself, his agents and servants from trespassing into, cultivating, cutting trees, grazing or in any manner interfering with parcel of land known as Muputi/Kimutwa/1820.

b. The Defendant to pay the costs of the suit.

c. The Defendant`s Counter-Claim is dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 25TH DAY OF MAY, 2018.

O.A. ANGOTE

JUDGE