[2023] KEELC 514 (KLR)

Tagaya v Onyango & another (Environment and Land Appeal 5 of 2022) [2023] KEELC 514 (KLR) (31 January 2023) (Judgment)

Neutral citation: [2023] KEELC 514 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment and Land Appeal 5 of 2022

GMA Ongondo, J

January 31, 2023

(FORMERLY MIGORI ELC APPEAL NO. E 005 OF 2021)

Between

Patrick Ogol Tagaya

Appellant

and

Jenifer Aoko Onyango

1st Respondent

Land Registrar, Homa Bay

2nd Respondent

(Being an appeal from the judgment of Hon. N. Moseti, Senior Resident Magistrate, delivered on 30th December, 2020 in Mbita Senior Resident Magistrate’s Court Environment and Land Case No. 5 of 2019)

Judgment

1. The property in dispute in this appeal is Land Reference Number Lambwe West B/2250 measuring approximately zero decimal four hectares (0. 4 Ha) in area contained in Registry Map Sheet Number 24 (the suit land herein).

2. The appeal originated from a suit filed by way of an amended plaint dated 19th September 2019 where the plaintiff/appellant herein sought the following orders;a.An order of permanent injunction restraining the defendant/respondent, her agents, servants and/or employees from trespassing, further destroying the trees, disposing, alienating, transferring, leasing and/or in any other way interfering with any part thereof of land parcel Lambwe West ‘B’/665. b.An order of eviction evicting the defendant/respondent from land parcel Lambwe West ‘B’/665. c.An order for rectification, directed at the 2nd defendant to rectify the title by deleting the size of the property from 1. 98 Ha to 0. 4 Ha, which was the size of the property sold to the 1st defendant.d.Costs of this suit and interest thereon as from the date of filing the suit until payment in full.e.Any other relief the honourable court deems just and expedient to grant.

3. PW1, Patrick Ogol Tagaya, the appellant herein, relied on his statement filed on 11th April 2019 which was adopted as part of his evidence. He produced in evidence a copy of letter from the Assistant Chief, God Jope Sub-Location, a copy of title deed, photographs, reply to defence and counterclaim (PExhibits 1 to 4 respectively).

4. The 1st defendant denied the claim through a statement of defence and counter claim dated 12th June 2019. In the counter-claim, the 1st defendant averred that she entered into a written agreement on 10th September 1985 with the plaintiff for the sale of six and a quarter acres of land to be excised from the plaintiffs L.R No. Lambwe West ‘B’/665 at an agreed purchase price of Kshs.10,000/-. That despite paying the purchase price in full, the plaintiff only transferred five acres to the defendant under title number L.R No. Lambwe West ‘B’/2250. Thus, the 1st defendant sought that the trial court do find and order that:a.The plaintiff, being the registered proprietor of that parcel of land known as title no. Lambwe West ‘B’/665, do excise one and a quarter acres from the said property and transfer the same to the defendant.b.Further or alternatively, the plaintiff to compensate the defendant for one and a quarter acres at current market rates.c.The plaintiff to pay costs of the suit and interest.

5. DW1, Jeniffer Aoko Onyango, the 1st respondent herein, relied on her statement dated 12th June 2019 and a copy of title deed for L.R No. Lambwe West ‘B’/2250, a copy of certificate of official search of L.R No. Lambwe West ‘B’/2250, a copy of mutation forms of L.R No. Lambwe West ‘B’/2250 vs 665, a copy of title deed for L.R No. Lambwe West ‘B’/2250, a copy of certificate of official search of L.R No. Lambwe West ‘B’/665, a copy of adjudication record dated 7th May 2006 and a copy of adjudication record dated 4th March 2002. (DExhibits 1 to 7 respectively).

6. She further relied on a copy of hand written instruction to defendant’s mother, a copy of objection of land allocation dated 3rd July 1987, a copy of sale agreement dated 10th September 1985, a copy of objection proceedings dated 30th November 1991, a copy of minutes of land dispute meeting dated 11th January 2019, a copy of notice of land visit dated 18th February 2019 and a copy of report of land dispute dated 25th February 2019 ( DExhibits 8 to 14 respectively)

7. DW2, Robert Omogi Ochola, relied on his statement dated 7th March 2020.

8. The 2nd defendant did not file a statement of defence to both the claim and counterclaim.

9. By the impugned judgment rendered on 30th December 2020, the court found that the plaintiff had failed to prove his case on a balance of probabilities. Therefore, the plaintiff’s suit was dismissed with costs and the 1st defendants counterclaim was allowed in the following terms:“The County Land Registrar and County Land Surveyor are hereby ordered to excise a portion of acres of land parcel number Lambwe West ‘B’/665 and have the same transferred into the 1st defendant’s name and cause rectification of the register and the registration map to reflect the same. In the alternative, the portion shall be assessed by a licensed land valuer whose costs shall be borne by the plaintiff and the market value of the portion aforesaid be paid by the plaintiff to the 1st defendant to enable him retain it as part of his property.”

10. The trial court’s findings attracted the appeal which was commenced by way of a memorandum of appeal dated 27th January 2021 through the firm of H. O Mimba and Company Advocates premised on grounds 1 to 10 which include:a.The learned trial magistrate erred in law by delivering judgment that was largely based on sale of land agreement that had a lot of anomalies.b.The trial magistrate erred in law by delivering a judgment that failed to consider the fact that the mutation that was used basically to correct the acreage in respect to the appellant’s parcel of land in favour of the respondent was not signed by him.c.Trial magistrate erred in law by failing to realize that there was no proof/evidence tendered in court that the alleged consideration of the purchase price was fully paid to the appellant making the entire sale of land void.

11. On that basis, the appellant has sought that the decision of the trial magistrate be quashed and this honourable court issues the following orders:a.An order for the rectification directed at the 2nd respondent to rectify the register of title by deleting the size of the respondent’s property from 1. 98 Ha to 0. 4 Ha which was the actual acreage of the property sold to the 1st respondent.b.A permanent order of injunction restraining the respondents’ agents, employees and/or servants from interfering with the appellant’s portion of land Lambwe West “B”/665. c.Costs of the appeal be provided.

12. The appeal was heard by way of written submissions following this court’s orders of 18th July 2022.

13. By the submissions dated 25th July 2022 and filed on 3rd August 2022, learned counsel for the appellant stated that the 1st respondent was to pay the appellant a sum of Kshs. 62,500/- as purchase price but did not do so. That the 1st respondent never tendered evidence before the trial court to prove that she paid the said purchase price. That therefore, the contract between the parties is unenforceable for lack of consideration. That further, parties did not have a common intention to contract.

14. Counsel also submitted that the subdivision of the appellant’s land and approval of the same, were done beyond the limitation period provided for under the Land Control Board Act, hence the same is null and void. Thus, counsel urged the honourable court to allow the appeal.

15. The 1st respondent filed submissions dated 16th September 2022 through the firm of Ameli Inyangu and Company Advocates and identified four issues for determination, to wit: whether there was a valid sale agreement executed between the parties herein; if so, what were the terms of the agreement? Whether the sum of Kshs.10,000/- paid to the appellant by the 1st respondent under the said agreement was for purchase of six and a quarter acres of land, whether the rectification/amendment of the Register and titles by the Registrar of Lands, Homa Bay, was valid and whether the learned magistrate erred by ordering excision of a further one and a quarter acres from title number Lambwe B/665.

16. Counsel submitted that the appellant and the respondent entered into a valid contract on 10th September, 1985 for sale and purchase of six and a quarter acres of land at the total price of Kshs. 10,000/-. That the allegation by the appellant that he was to be paid Kshs.62,500/- for the suit land is a fresh matter being introduced in the instant appeal. That the contract was the basis of objection no. 531 in respect of Plot No. 665 by the 1st respondent during adjudication process. That the said objection was allowed and it was ordered that Plot No. 665 be subdivided so that the 1st respondent gets her portion and be issued with a new plot number 2250. However, only one acre was carved out of Plot No. 665 and registered as Title no. Lambwe West B/2250.

17. Learned counsel stated that this error was later rectified by the Land Registrar pursuant to Section 79(1) of the Land Registration Act, although the 1st respondent was only awarded an additional four acres instead of five and a quarter acres. That therefore, the 1st respondent in her counterclaim averred that the appellant was in breach of contract by refusing to transfer one and a quarter acres of the land he sold to the 1st respondent vide the sale agreement dated 10th September, 1985.

18. Further, counsel submitted that the appellant’s contention that the transfer and registration of the additional four acres of land to the 1st respondent was unlawful due to absence of a consent from the Land Control Board does not hold water, since that would amount to denying a beneficial owner the right to a validly purchased interest in land. Counsel relied on the case of Willy Kimutai Kitilit –vs- Michael Kibet(2018) eKLR, to fortify his submissions.

19. The 2nd respondent was duly served as disclosed in an affidavit of service sworn on 8th November 2022. However, the said respondent did not participate in the instant appeal.

20. In that regard, the issues for determination are as captured in the grounds of appeal and compressed thus:a.Whether there was a valid sale agreement executed between the parties herein; if so, what were the terms of the agreement?b.Whether the 1st respondent paid the agreed consideration for purchase of the suit land;c.Whether the rectification/amendment of the Register and titles by the Registrar of Lands, Homa Bay was valid;d.Whether the learned magistrate erred by ordering excision of a further one and a quarter acres from title no. Lambwe B/665e.Who should bear the costs of this appeal?

21. I have carefully considered the parties’ respective pleadings, the trial court’s proceedings inclusive of evidence as well as the judgment of the learned trial magistrate. It is the duty of this court to reconsider the evidence on record afresh and come to its conclusions and inferences; see Selle and another –vs- Associated Motor Boat Co. Ltd. and others (1968) EA 123 and Williamson Diamonds Ltd. –vs- Brown(1970) EA 1.

22. It is noted that the learned trial magistrate set out the parties’ respective cases, framed twin issues for determination, analysed them and arrived at his decision based on reasons. So, the impugned judgment complied with Order 21 Rule 4 of theCivil Procedure Rules, 2010.

23. In the foregoing, I proceed to discuss the issues as hereunder.

a. Whether there was a valid sale agreement executed between the parties herein; if so, what were the terms of the agreement? 24. The appellant contends that the learned trial magistrate erred in law by delivering judgment that was largely based on sale of land agreement that had a lot of anomalies. However, the 1st respondent asserted that there is a valid sale agreement between the parties.

25. It is noteworthy that the appellant admitted during cross-examination that the sale agreement had not been altered. He stated thus:“The sale agreement has not been altered”

26. Indeed, the said sale agreement (DExhibit 10), shows that the 1st respondent bought six and a quarter acres of Plot No. 665 in Lambwe from the appellant at a purchase price of Kshs. 10,000. The same was executed by both parties as well as their witnesses.

27. It is therefore, this court’s considered view that the appellant herein did not adduce sufficient evidence to show that there exist anomalies in the sale agreement as alleged.

b. Whether the 1st respondent paid the agreed consideration for purchase of the suit land; 28. The appellant averred that the 1st respondent was to pay him a sum of Kshs. 62,500/- as purchase price but did not do so. That the 1st respondent never tendered evidence before the trial court to prove that she paid the said purchase price. That therefore, the contract between the parties is unenforceable for lack of consideration.

29. The 1st respondent insists that the allegation by the appellant that he was to be paid Kshs.62,500/- for the suit land is a fresh matter being introduced in the instant appeal. That the same was never raised at the trial court.

30. Clearly, the appellant never raised the issue of non-payment of the purchase price at the trial court. Besides, the agreed purchase price was Kshs. 10,000/- according to the sale agreement. It is thus, this court’s considered view that the evidential burden of proof at the trial court did not shift to the 1st respondent herein to adduce evidence as proof of payment of the purchase price; seeRaila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR.

c. Whether the rectification/amendment of the Register and titles by the Registrar of Lands, Homa Bay was valid; 31. The appellant contends that the trial magistrate erred in law by delivering a judgment that failed to consider the fact that the mutation that was used to correct the acreage in respect to the appellant’s parcel of land in favour of the respondent was not signed by him.

32. The 1st respondent’s counsel submitted that a vendor cannot simply hide behind the absence of a land control board consent to deny a beneficial owner the right to a validly purchased interest in land. Reliance was placed on the case of Willy Kimutai Kitilit case (supra).

33. On that score, I proceed to endorse the learned trial magistrate’s finding in respect of the alteration being done in line with the provisions of Section 79 (2) of the Land Registration Act, 2016 (2012). The learned trial magistrate noted at page 7 of the judgment thus:“…It is crystal clear that the 1st defendant bought six and a quarter acres from the plaintiff. It would have been unjust to the 1st defendant if the Land Registrar would not rectify that anomaly… The registrar acted within his power, save that he failed to capture the actual acreage that the 1st defendant bought; to wit, six and a quarter acres…”

d. Whether the learned magistrate erred by ordering excision of a further one and a quarter acres from title number Lambwe B/665 34. The 1st respondent in her counterclaim asserted that the appellant was in breach of contract by refusing to transfer one and a quarter acres of the land he sold to the 1st respondent vide the sale agreement dated 10th September, 1985.

35. In allowing the counterclaim, the learned trial magistrate ordered the excision of a further one and a quarter acres from title no. Lambwe B/665 and have the same transferred into the 1st respondent’s name. In the alternative, that the one and a quarter portion be assessed by a licensed land valuer whose costs shall be borne by the appellant and the market value of the portion aforesaid be paid by the appellant to the 1st respondent to enable him retain it as part of his property.

36. Section 4 (1) (a) of the Limitation of Actions Act, Chapter 22 Laws of Kenya provides as follows:Actions of contract and tort and certain other actions(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued—(a)actions founded on contract;

37. Notably, the contract that the 1st respondent sought to enforce was executed on 10th September 1985. This court therefore, notes that the claim by the 1st respondent for enforcement of the said sale agreement was time barred by virtue of the provision of Section 4(1) (a) of the Limitation of Actions Act (supra). No sufficient explanation for the delay was given by the 1st respondent. So, the same cannot stand.

38. Wherefore, the instant appeal originated by way of a memorandum of appeal dated 27th January 2021 hereby substantially fails and is dismissed, save for as stated in paragraph 37 hereinabove.

e. Who should bear the costs of this appeal? 39. Each party is therefore, ordered and directed to bear own costs.

40. Orders accordingly.

DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 31ST DAY OF JANUARY, 2023. G.M.A ONG’ONDOJUDGEPresent1. Ms. Mimba, Learned Counsel for the appellant2. Mr. Inyangu, Learned Counsel for the 1st respondent3. Appellant4. 1st respondent5. Okello, Court Assistant