[2023] KEELC 895 (KLR)

Tonje v Chepyegon & 11 others (Environment & Land Case 168 of 2016) [2023] KEELC 895 (KLR) (16 February 2023) (Judgment)

Neutral citation: [2023] KEELC 895 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case 168 of 2016

EO Obaga, J

February 16, 2023

Between

Angela Cheptamos Tonje

Plaintiff

and

Ishmael Chepyegon

1st Respondent

Jackson Kiplimo Amdany

2nd Respondent

Lizah Jebet Kiptoo

3rd Respondent

Alice Jepchumba Talai

4th Respondent

Alfred Kibiwott Chepyego

5th Respondent

Kipkoech Cheruiyot

6th Respondent

Justus Cheboi

7th Respondent

Sylas Kiptui Sang

8th Respondent

Mark Komen

9th Respondent

Zachariah Kipkemoi Kiprop

10th Respondent

and

William Tallam

1st Defendant

Joan Jelagat Kandie

2nd Defendant

Judgment

Introdution 1. The Plaintiff filed this suit claiming the following reliefs:-a.An eviction order to issue against the Defendants removing them, their agents, servants and or workers with all their structures from the Plaintiff’s parcel of land known as BARINGO/SABATIA – 103/331. b.A permanent order of injunction to issue restraining the Defendants by themselves, their agents, servants and or workers from entering, dealing with or in any way interfering with the Plaintiff’s parcel of land known as BARINGO/SABATIA – 103/331. c.Costs of tis suit be borne by the Defendants.

Background; 2. The Plaintiff is daughter to Kezia Talai Tonje who was the registered owner of LR No. Baringo/Sabatia/103/256 measuring 8. 0 hectares. This land was subdivided and it yielded among other subdivisions LR. No Baringo/Sabatia/103/331 measuring 1. 78 hectares (suit property).

3. Prior to the subdivision, Kezia Talai Tonje had sold various portions of her land to various individuals. Her son John Bartinga Tonje also sold portions of the land before and after the death of his mother to various individuals.

4. The family of the Estate of Kezia Talai Tonje carried out succession in respect of her estate. A certificate of confirmation of grant was issued on 10th February, 2015. The suit property was transmitted to the Plaintiff. The Plaintiff obtained certificate of title on 28th May, 2015.

5. The 2nd to 12th Defendants did not attend court to testify. Their counter-claim was dismissed for non-attendance and their defence deemed closed.

Plaintiff’s case; 6. The Plaintiff testified that the suit property was transmitted to her upon conclusion of the succession cause in respect of the Estate of her later mother. She stated that she did not authorize her brother John Bartinga Tonje to sell parts of the suit property. The Plaintiff stated that the Defendants invaded the suit property hence her prayer for eviction and injunction.

1st Defendant’s case; 7. The 1st Defendant testified that in 1996 he entered into a sale agreement with the late Kezia Talai Tonje for the purchase of three plots each measuring 50x100. Each plot was going for Kshs 35,000/= He paid Kshs 70,000/= on execution of the agreement. The balance of Kshs 35,000/= was to be paid within 3 months. He stated that he cleared the balance within 3 months.

Submissions of the parties 8. The Plaintiff filed her submission on 13th April, 2022. The 1st Defendant filed his submissions on 14/6/2022. The 2nd to 12th Defendants did not file any submissions despite being given 30 days to file theirs from the time of service of the Plaintiff’s submissions.

Analysis and determination; 9. I have carefully considered the evidence adduced by the Plaintiff and her witness as well as the 1st Defendant and his witness. I have also considered the submissions by Plaintiff and 1st Defendant. The issues which emerge for determination are firstly, did the late Kezia Talai Tonje sell land to the 1st Defendant. Secondly, did John Bartinga Tonje have authority to sell land to the Defendants. Thirdly, which order should be made on costs.

10. There is no contention that the late Kezia Talai Tonje was the registered owner of L.R Baringo/Sabatia/103/256. The late Kezia Talai Tonje who died in 2002 sold land to the 1st Defendant on 11th January, 1996. The 1st Defendant produced a sale agreement as defence exhibit 1. In this agreement, the 1st Defendant paid Kshs 70,000/= on execution of the agreement. The balance was to be paid within 3 months. The 1st Defendant stated that he cleared the balance within 3 months. There is no evidence that he cleared the balance. While under cross-examination, he conceded that he had no evidence of clearance of the balance.

11. The late Kezia Talai Tonje had the capacity to sell land as she was the registered owner. I therefore find that the 1st Defendant is entitled to two plots measuring 50x100 for which he fully paid.

12. From the documents in the file, John Bartinga Tonje sold land to the 5th Defendant in exchange for a motor vehicle. This was on 27th March, 2012. The plot he sold to this 5th Defendant is LR. Baringo/Sabatia/103/334 which is not the suit property. If the 5th Defendant is on the suit property, then he is a trespasser.

13. The same John Bartinga Tonje sold land to the 8th Defendant on 26th March, 2008. This was after her mother’s land had been subdivided and her mother had died. The same John Bartinga Tonje sold land to the 10th Defendant on 7th February, 2014. This is after his mother had died.

14. Even after the process of succession had been undertaken and the suit property transmitted to the Plaintiff, John Bartinga Tonje sold a portion of the suit property on 15th April, 2016. John Bartinga Tonje was not the administrator of the Estate of his mother. Infact the process of succession was carried out in 2015.

15. John Bartinga Tonje claims that he had a power of attorney to sell land from her late mother. There was no power of attorney which he had from her mother. What he called a power of attorney is a document from Agricultural Finance Corporation in respect of LR. Sabatia/103/101 which is not the suit property. It is not a power of attorney.

16. It is therefore clear that John Bartinga Tonje had no authority to sell his mother’s land when he was not an administrator of her estate. He also did not have authority to sell land which had been bequeathed to the Plaintiff.

Disposition; 17. From the above analysis, it is clear that Plaintiff has proved her case on a balance of probabilities against the 2nd to 12th Defendants. I therefore allow the Plaintiff’s claim against the 2nd to 12th Defendants in terms of prayers (a) (b) and (c) of the plaint dated 25th April. 2016 and filed in court on 27th April, 2016. The Plaintiff’s claim against 1st Defendant is dismissed with costs.

18. On the other hand, I find that the 1st defendant has proved that he purchased two plots measuring 50x100 from Kezia Talai Tonje. The Plaintiff who is the registered owner of LR. No. Baringo/Sabatia/103/331 should transfer two plots measuring 50x100 to the 1st Defendant. The 1st Defendant shall have costs of the counter-claim.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 16TH DAY OF FEBRUARY, 2023. E. O. OBAGAJUDGEIn the virtual absence of Plaintiff’s counsel who was aware of date of delivery of judgement.Court Assistant –LabanE. O. OBAGAJUDGE16TH FEBRUARY, 2023