[2009] KEHC 1893 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO

Civil Suit 65 of 2002

WILSON CHANGTOEK...........................................PLAINTIFF

VERSUS

DAVID KIPNGENO NGETICH ..........................DEFENDANT

JUDGMENT

I: Procedure

1. On 4th September, 2002 Wilson Chengtoek a male adult filed suit against David Kipngeno Ngetich the defendant herein in High court Civil Case 65 of 2002 seeking orders from this Court of injunction to restrain the said defendant from occupying his land being LR. Kericho/Boito/998 that he claims he had purchased from the defendants father.

2. The Plaintiff filed an application for an injunction to restrain the Defendant from being on the said land. This application dated the 24th June, 2003 was heard (Lessit J) and duly dismissed as there being no prima facie case made out against the defendants to warrant an injunction.

3. The defendant filed a fresh suit by way of an originating summons on the 3rd June, 2005 in High court civil Case 66/05 at Kericho.

4. The Plaintiff amended his plaint in High Court case 65/02 and prayed for further orders of an Eviction, vacant possession and to be declared the lawful owner of property Kericho/Boito/998.

5. Likewise the Defendant amended his originating summons in the year 2006 as the land parcel claimed by the plaintiff in this case had a new title and was only for portion of the land but not all as he, the plaintiff had earlier claimed.

6. These two cases were accordingly consolidated by Musinga J on 13th June, 2006.

7. For ease of reference in both cases the parties will be referred to in both cases as

a. Wilson Chengtoek …. Plaintiff

represented by M/S Karen Wanderi & Co. advocates of Nakuru

b. David Kipngeno Ngetich

represented by M/S Bett & Co. advocates of Kericho.

8. It was on 24th July, 2006 that Kimaru J proceeded with the trial and heard all the plaintiffs’ witnesses. The court adjourned to hear the defence case at a later date. The Hon. judge was transferred from Nakuru where he was a circuit judge, at the Kericho Court.

9. Parties took hearing dates on 9th October, 2008 to be heard on 26th May, 2009. The trial proceeded before this court on that day under Order 17 r 10 Civil Procedure Rules. The plaintiff was recalled to clarify his evidence further on 9th June, 2009.

II: Background facts of case.

10. The plaintiff gave evidence and called his witnesses to court. He stated that he and one Kipngetich Arap Rutto were very good friends. (The said named is now deceased and would herein be referred to as the deceased). The deceased had sold his land twice. Once to a first buyer then to a second buyer. He failed to deliver up the said parcel of land. He then approached him to pay off the two buyers then be would sell the land to him. This he did for Kshs. 5,400/= and was given two acres. This was sometimes in 1978. He and the deceased went to the lands department and transferred the land to him.

11. The children of the deceased, sometime in the year 2002 invaded his land and did destruction. They demolished his small structure that he had put up and he now wants them evicted from portion of the land.

12. He called witnesses to prove he bought the land. He produced a proceedings of the Konoin Land Disputes Tribunal held on 30th January, 2001 which deliberated on the land parcel Kericho/ Boito/531. They held that the plaintiff was lawfully sold the land and he was so sold the land in 1978. As such he is to obtain 2 acres of the said land.

13. The parties defendant did not appeal against this decision. The plaintiff was issued with a title deed on 9th October, 1980 which was so confirmed as his, by the elders.

III: Defence

14. The defendant’s case had been that the said portion and title of land was obtained by fraud. That the deceased, also his late father, owed the plaintiff some moneys. The plaintiff was granted 2 acres to cultivate as a lease not ownership. He instead came to the deceased house in his absence and obtained the title deed from his sister (DW2). DW2 in fact told this court in evidence that the said title was taken from her by the plaintiff. She was young then and alone in the house. Her father entrusted her to keep safe his documents, which she did. The plaintiffs, then an assistant chief and a man to be respected came to ask her for the title. She gave it to him having trust in him. The plaintiff went away. Her father was not happy that the said title was released to the plaintiff.

15. In the proceedings before the elders she gave the same consistent evidence.

16. The plaintiff was recalled to court by this court. He stated the evidence given on fraud was “porojo” i.e. falsehood. That it was not correct and there was nothing of the sort. This story was entirely made up. He was merely an assistant chief.

IV: Opinion

17. In this land matter the issue herein is one of fraud. Did the Plaintiff obtain his portion of land being Kericho/Boito/998 by false means from the deceased? The other is of adverse possession.

18. The defendants advocate tried to rely on the arguments that there was no land control board consent. The defendants themselves alleged that the plaintiff misused his powers and confided and deceived their father. There was no sale agreement. The family had never been called all they knew was that they were dealing with a debt. In lieu of paying that debt the plaintiff was to cultivate the land until the amount due had expired. (According to DW2).

19. Was there a sale agreement between the deceased and the plaintiff? All along the plaintiff called witnesses to prove indeed there was a sale, although one surveyor stated that he did the demarcation but was not sure that it was for purposes of a sale agreement? There was no written sale agreement that was tendered to court under the Law of Contract Act.

20. The other issue was of adverse possession. According to the defendants they have all a long been in possession of their land. Any attempts to occupy the land met with resistance by the defendants. They claim possession of land by way of adverse possession.

21. Evidence showed, in the proceedings before the elders admitted by the plaintiff under Section 34 of the Evidence Act Cap 80 that there had been a village elder’s case. The District offices case and now the land disputes case namely one Paul Meli alleged that the deceased had been informed to go to Kericho to sign unknown forms and was shocked to be asked if he had a family. No family was present.

22. Could this amount to elements of frauds and this the allegation of the Lands Control Board being absent?

23. I find herein on a balance of probability that the claim of fraud is supported by this Court. I further find that the 2 acres had been acquired without the express and willful knowledge of the family of the deceased. I find further the claim of adverse possession of the said defendant under their originating summons has been established.

24. I dismiss the plaintiff’s case and enter judgment for the defendant on the counter claim with cost to the Defendants.

DATED this 17th day of June, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

Advocates

K.C. Wanderi advocate instructed by the firm of M/S Wanderi & Co. advocates for the Plaintiff – present

J.R. Kimetto advocate instructed by the firm of M/S Bett & Co. advocate for the defendant – present