Agneta Athieno Onyango v Geofrey Kudondo, Milton Kudondo & Richard Kudondo [2015] KEHC 4418 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO.  111 OF 2014.

(CONSOLIDATED WITH BUSIA CMCC. NO. 160 OF 2014 VIDE CONSENT  DATED 18TH JUNE, 2014)

AGNETA  ATHIENO  ONYANGO ……..………........……………………PLAINTIFF/APPLICANT

VERSUS

GEOFREY KUDONDO…..………..………………………………………………1ST DEFENDANT

MILTON  KUDONDO…………..………………………………………………..2ND DEFENDANT

RICHARD  KUDONDO………..…………………………………………………3RD DEFENDANT

J U D G M E N T.

BACKGROUND.

AGNETA ATHIENO ONYANGO, hereinafter  referred to as the Plaintiff, on her own  behalf and as administratrix  of the estate of  PATRICK  OCHIENG  OBONGITA,  through the  further re-amended  originating summons  dated 19th January, 2015, against  Geoffrey Kudondo, Milton Kudondo and  Richard Kudondo,  hereinafter  referred to as 1st to 3rd Defendants  respectively, claims for  the following;

To be declared   the adverse possessor of two plots each of 50 by 100 feet of Marachi/Bukhalalire/810.

That permanent injunction do issue against the Defendants over the said two plots and costs.

The Plaintiff’s re-amended originating summons contains alternative prayers as follows;

Refund of Kshs.76,000/= paid as purchase price.

Payment of Kshs.494,728/= being the value  of the main house, kitchen, toilet, bathroom, borehole and cost of landscaping.

Kshs.532,726/= being the value  of the trees and fruits trees  planted  thereon.

Kshs.75,000/= being the value  of the food crops on the land.

Kshs.60,000/= being the mortuary  charges and funeral expenses in respect  of her late husband, and

General damages for being stopped from burying her late husband’s body on the suit land.

The Plaintiff’s claim is disputed by the Defendants through the replying affidavits sworn on 27th January, 2015 by 1st Defendant on his own behalf and that of his co-defendants.

The 1st Defendant had commenced Busia CMCC. NO. 160 of 2014 against Agneta Athieno, who is the Plaintiff, through the plaint dated 4th April, 2014 praying for a permanent  order of injunction to stop the plaintiff from burying the remains of her late husband on the suit land and costs. The 1st Defendant  contemporaneously filed  the Notice of Motion  under certificate  of urgency dated 4th June, 2014  seeking temporary  injunction  pending  the hearing and determination of the suit.

The Plaintiff filed her statement of defence dated the 7th April, 2014 to the lower court suit.

Mr. Ashioya and M/S. Maloba Advocates for the Plaintiff and Defendants respectively filed a written consent dated 18th June, 2014 among others consolidating Busia CMCC. No. 160 of 2014 with this case for hearing and determination. The 1st Defendant’s claim for permanent injunction in Busia CMCC. No. 160 of 2014 was under the said consent taken  as a Counter claim while the originating summons  and replying affidavit  filed herein are taken as the plaint and defence  respectively.

The Plaintiff  testified  as PW 1 and called Dixion Asiro Odwori, Dixion  Obuya, Joseph  Owuor Ongulu, Winchester George  Nasiye, Chrisantus Odhiambo, Vincent  Wamalwa Komeri, John Bosco Oduori and Moris Owino as witnesses  and they testified  as PW 2 to PW 9.

The Defendants testified as DW 1, DW 2 and DW 3  respectively.

The Plaintiff’s  counsel  then filed their written submission dated 11th March, 2015 while that by the Defendants counsel  which is undated was filed on 18th March, 2015.

9.  ISSUES FOR DETERMINATION.

Whether  the first Plaintiff has been in occupation of the suit land and if so whether her occupation has been adverse to the title of the registered  proprietor.

Whether  the Plaintiff has been in occupation  of the suit land continuously and uninterrupted  for over 12 years and if so, whether she has acquired rights of an adverse possessor over the suit land.

Whether  the period the Plaintiff’s  husband had been in possession of the suit land before marrying the Plaintiff should be considered when  computing the period for adverse possession.

Whether  the Plaintiff has done any developments on the suit land and if so whether  she is entitled to compensation.

Whether the 1st Defendant  is entitled to an order of permanent injunction against Plaintiff over the suit land.

Who should pay costs.

10.  ANALYSIS  OF THE EVIDENCE.

The Plaintiff had first initiated these proceedings through the originating summons dated  13th May, 2014. The Defendants had each filed a replying affidavit sworn on 21st May, 2014. Thereafter the hearing commenced on 9th July, 2014 and Plaintiff testified as PW 1. She told the court that she got married to her late husband Patrick Ochieng Obongita in 2003 after his first wife left. She joined her husband on the land he had bought from Paul Kudondo and has lived on that land since 2003. The Plaintiff said her late husband had bought the two plots in 2000 and settled on that land in 2001.  It is obvious that the Plaintiff had not come to the suit land until the year 2003 when she got married and her evidence about the time her late husband bought the land and settled on it must have  been what she was told after marriage.  She did not disclose her source of the information. There are other witnesses like PW 2 and PW 8 who stated that the Plaintiff’s husband bought the plots in 2000.  These two witnesses indicated that they were present and witnessed the sale transaction.  The law requires agreements of sale of land to be in writing [see section 3 of the Law of Contracts Act Chapter  23 of the Laws of Kenya]. The Plaintiff’s case is that a written sale agreement over the two plot was made and duly witnessed and that it later got burnt in a fire while with her late husband’s first wife. A copy of a police abstract of 10th May, 2011 confirms that her late husband’s report had been recorded as O.B. 19.  The Defendants have disputed that there was any land sale agreement or that the agreement was burnt in a fire. The Defendants’ counsel has further submitted that, had it been true that the sale agreement was destroyed in a fire, then there was no explanation offered why another agreement was not done as by that time both the purchaser  and the vendor were alive.  The court has no way of confirming what the terms of the agreement was without a copy being availed before the court. This is especially so as the witnesses  gave  different  figures of the purchase  price,  amount paid and  the number  of plots bought or sold under the said agreement.

The evidence  adduced by both parties  confirm that the Plaintiff is  still residing and using  a portion of the suit land.  What is in dispute  is when, and on what basis the Plaintiff started living  on the suit land.  It was the contention of the 2nd Defendant that the late Patrick Ochieng Obongita  settled on the land first with his first wife in 2000.  That the late Patrick Ochieng Obongita  was later asked to vacate  and in 2006 he  came back with the Plaintiff  as his wife. The Plaintiff and  her witnesses had also said that the late Patrick Ochieng Obongita  started living on the land in 2000. The court  therefore finds  that both  parties  are in agreement that the late Patrick settled on the land on or about 2000 with  the consent  of the registered proprietor, the late Paul Kudondo.

The late Patrick had been invited to the suit land by Paul Kudondo to settle there as he treated  his ailing family members.  It is probable as some  of the witnesses  stated that the late Paul Kudondo offered to sell a portion of the suit land to the late Patrick Ochieng Obongita and that  the costs of treating the ailing family members was to be taken as  part of the purchase price.   The absence  of a written  sale agreement  however makes it  difficult for  the court  to confirm the terms of the agreement.

The occupation of the suit land  by Patrick Ochieng Obongita and his family, including  the Plaintiff, did  not dispossess the  registered  owner so long as they remained  on the land with his permission.  The claim  by the Plaintiff that  she  and her late husband had been in adverse possession of the suit land since 2000  cannot therefore be true  as their  occupation  was with permission of the registered  owner.  They were therefore   lisencees on the basis of the sale agreement.

That the evidence  availed shows that the relationship between Patrick Ochieng Obongita  and Paul Kudondo  over the suit land  was discussed before the Chief  and District Officer in the year 2011. Even  though  no record of the proceedings was availed  to this court as evidence,   a copy of a letter dated 2nd June, 2011 was done  by Paul Kudondo to Patrick Ocheing Obongita asking him to  vacate  from the suit  land. The copy  of the letter is annexed  to the replying affidavit of the  2nd Defendant sworn on 21st May, 2014. This letter and the hearing of the dispute before the Chief  and District Officer is the only evidence that could be taken   to show that Paul Kudondo had by the year 2011 withdrawn the permission  he had given Patrick Ochieng Obongita  to settle on the land.  It could also be taken to be a manifestation of Paul Kudondo’s  decision  to backtrack from the  sale agreement  he may have had with Patrick  Ochieng Obongita  over  the suit land.  Patrick Ochieng Obongita  could have sued Paul Kudondo  for breach of contract  but he did not.  It  therefore  follows that the period  from the year 2000  to 2011 cannot  be included when calculating the period  the Plaintiff  and her late husband  may have been in adverse possession of the suit land.

The evidence available shows that Patrick Ochieng  Obongita  and his family did not vacate the suit land as  required of them in 2011. They continued  in occupation and Paul Kudondo  died on 13th November, 2012 (see limited grant  ad Litem issued to  1st Defendant and the burial permit).  Then  Patick Ochieng  Obongita died on 31st March, 2014  (see  Limited grant and  ad litem issued to plaintiff dated 31st July, 2014). For  the Plaintiff to  succeed in her claim based  on adverse possession, she  must show that she has used the two plots of the suit land as of right continuously, without  force ,secrecy or persuasion for over 12 years [see Titus  Kigoro Munyi =vs= Peter Mburu  Kimani [2015] eKLR and Gicharu Kariri =vs=  Peter Njoroge Mairu. Nairobi Civil  Appeal  No. 293 of 2002] By the time the originating  summons dated 13th May, 2014  was filed ,only  about three years had passed since 2011.  This therefore  means that Patrick Ochieng Obongita  died before he could become an adverse possessor of the suit land. The Plaintiff also  filed this suit before  the 12 year period had lapsed and had  therefore not attained the rights of an adverse possessor  to the suit land.

That  the law requires consent of the Land Control Board be obtained within six months  from the date of the agreement for sale of agricultural land. [see Section 6 and 8  of the Land Control Act Chapter  302  of Laws of Kenya]. Though the Plaintiff  annexed  to her supporting affidavit sworn  on 1st July, 2014  copies of applications for consent to  subdivide Marachi/Bukhalalire/810 and transfer undisclosed  parcel of land measuring  0. 1 hectares, the  consents were not annexed. The court can only conclude that the applications for consents were never  paid for and filled with the relevant Land Control Board and  no consents were therefore issued. The Plaintiff also annexed a copy of transfer form which is blank except some marks scribbled where the transferor and transferee affixes their signatures.  This transfer form is of no value to those proceedings as it is incapable  of being acted upon even if presented  to the Land Registrar.

The evidence availed shows that Patrick Ochieng Obongita died before he could have the land he was buying from Paul Kudondo registered in his names. This being the case, the Plaintiff cannot claim  overriding interests of a spouse  in terms of section 28(3)  of  the Land Registration  Act 2012 as the land was never been registered  in her late spouse’s names.

Though  counsel  for the Plaintiff submitted that the court should rule in favour of the Plaintiff on the basis of the doctrine of promissory estoppel, the pleadings  filed herein do set out such a claim. Parties in a suit   are bound by their pleadings and  this suit was  commenced through originating  summons in accordance with  order 37 of the Civil Procedure  Rules and does not contain a prayer  based on the said doctrine.

That it  is however  obvious  that  when Paul Kudondo allowed Patrick Ochieng Obongita  to settle on the suit land, he  did not stop him and his family from carrying  out  developments thereon including constructing houses  and planting  trees.   The 1st Defendant counterclaim does not seek to stop the Plaintiff  from carrying out  the development  or to evict her from the suit land.  The 1st Defendant was within his rights, as the personal representative of the late Paul Kudondo to commence Busia CC. No. 160 of 2014 to stop the Plaintiff from burying her late husband on the suit land.  He has applied for permanent injunction and as already  found  above, the Plaintiff  has not availed a valid sale agreement  that could be enforced. Her late husband   died without seeking specific performance orders against Paul Kudondo. The Plaintiff is therefore not entitled to any general damages for being stopped from interring the body of her late husband on the suit land. She cannot also claim for refund of mortuary expenses  for her late husband  body’s  preservation.

The value  of the food crops cannot also be awarded to the Plaintiff as there is no  evidence  to suggest that  it was taken from her.   The food crops must already have been harvested by the Plaintiff who is still in possession of the portion she was occupying  when this suit  was filed.

The value  of the main house, kitchen, toilet and bathroom  must have been the values of newly built  structures.  The  court was not told when the structures were constructed and their value as they stand at the time of  valuation.  It would however  be premature to determine the current value of the said structures and the costs of the landscaping as the Defendants  have not indicted that they want  to evict  the Plaintiff.  The counterclaim is limited to an injunction  stopping Plaintiff  from burying  the body of her late husband on the suit land.

That the report by the forester, (PW 7), on the value of the trees on the land was Kshs.532,726/=. However  the report did  not give  the acreage of the land or the parcel  number where the trees  the forester valued  were  growing.  The valuation  exercise  was done after the filing of this suit and the Defendants were not involved. The  court is  therefore  unable to confirm  that the trees valued were  all on the two plots subject matter of this suit and as  there is no prayer  in these proceedings to evict the Plaintiff  from the suit land, no order will be  issued on that prayer.

That  having found that the Plaintiff obtained  the Limited grant  and Litem on 31st July, 2014, while the originating  summons were  filed  on 13th May, 2014, it  follows that by  the time Plaintiffs filed  this suit, she had  no capacity  to sue on behalf  of her late husband’s  estate.  The Plaintiffs effort through their amended  originating  summons to indicate  in the heading that she was also suing on behalf of the estate of Patrick Ochieng Obongita did not cloth her with capacity . This court concurs with the decision  of Makhandia J,  (as he then was)  in Patrick  Kiseki Mutisya (Suing  as the personal representative  to the estate of Nzomo Mutisya (deceased)  -vs- K.B. Shaghani  & sons Limited  & another [2012] eKLR, where  the honourable  judge  agreed  with the position taken by one of the parties  that a suit  instituted  by a party who has not obtained a grant before hand is a nullity.  The honourable judge then referred to a passage  of Lord Denning’s judgment  in Macfoy –vs- United  Africa Ltd [1961]All E.R. 1169 at page 1172   and made the following finding;

‘’The  subsequent  amendment  of the plaint cannot  reverse the initial harm   done to the suit. The Plaintiff  when he initiated  the suit, had  no capacity  to   sue.  It is settled  law that  a person cannot sue on behalf  of the estate  of the   deceased unless he has first obtained  a grant  of letters of administration     either  limited or full.  A similar position  had been taken by the Court of Appeal  in Virginia Edith Wambui  Otieno –vs- Joash Ochieng Ougo [1982-88] I KAR 1049 where the court observed;

‘’  But  an administrator  is not entitled  to bring an action as an   administrator before  he has taken  out letters of administration.  If he does the action is incompetent at the date of its inception.’’

The best  the Plaintiff could have done if she desired to  sue on behalf  of the estate of the late Patrick  Ochieng Obongita would have been  to withdraw the suit and  file  a fresh one after obtaining  the Limited or full grant.

11.       FINDINGS.

That the Plaintiff had no capacity  to sue on behalf  of the estate  of Patrick Ochieng Obongita  at the time this suit was filed as she had not obtained  a limited or full grant under the Law of Succession Act, Chapter 160 of the Law of Kenya.

That the Plaintiff  settled on the suit land in 2003 upon marrying the  late  Patrick Ochieng Obongita who  had purchaser’s interests on the land.

That the late Patrick Ochieng Obongita had settled on the suit land as a purchaser with permission of Paul Kudondo, the registered owner in 2000.

That the sale agreement between Paul Kudondo  and Patrick Ochieng Obongita of 2000  was breached  by Paul  Kudondo  in 2011 and became void for failure to obtain  the consent required  under section 7 of the Land Control Act Chapter  302  of the Laws of Kenya.

That Paul Kudondo withdrew  his permission to allow Patrick  Ochieng Obongita to  stay on the suit land in 2011 and the continued  occupation  of the suit land by the Plaintiff from  that date was without permission and therefore adverse to the title of the registered owner, Paul Kudondo.

That by  the time the Plaintiff filed  this suit, only about three years had passed from 2011 and this falls short of the twelve years required to confer  her with prescriptive rights over the suit land.

That the 1st Defendant,  as the personal  representative of the estate of Paul Kudondo, has a right  to seek to stop the Plaintiff from interring the body of Patrick Ochieng Obongita  and permanent  injunction  is hereby issued  in terms of prayer (a) of the plaint  dated 4th April, 2014   filed in Busia  CMCC. No. 160 of 2014.

That in view of the circumstances under which the Plaintiff settled  on the suit land and the fact that she is still residing on the said  land, the court  directs that  each party bear his/her own costs in both suits.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 18th DAY OF   JUNE, 2015.

IN THE PRESENCE OF;

PLAINTIFF/APPLICANT………………PRESENT……………………………………..

1ST DEFENDANT/RESPONDENT…… PRESENT………………………………………..

2ND DEFENDANT/RESPONDENT……PRESENT………………………………………

3RD DEFENDANT/RESPONDENT……PRESENT………………………………………..

COUNSEL.MR. ASHIOYA  FOR PLAINTIFF AND MR. WAWERU FOR MALOBA FOR DEFENDANT.