Anne Olawo Kimaru v Nicholas Mayeri Okombo & John P. Othieno [2014] KEHC 3628 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 23 OF 2014 (FORMERLY HC.C. 79 OF 2011)

ANNE  OLAWO  KIMARU::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

NICHOLAS MAYERI  OKOMBO

JOHN P. OTHIENO::::::::::::::::::::::::::::::::::::::::DEFENDANTS.

J U D G M E N T.

ANNE  OLAWO KIMARU, hereinafter  referred to as the Plaintiff, commenced  this suit against Nicholas  Mayeri  Okombo  and John P. Othieno, hereinafter referred to as 1st and 2nd  Defendant  respectively through the originating summons dated 29. 10. 2011, filed  through M/S. Balongo  & co. Advocates. Through  the directions  issued on 10. 7.2012, the originating  summons and supporting affidavit  were  taken as the plaint and the replying affidavit filed by Defendants was taken as the defence.

PLAINTIFF’S AVERMENTS.

That her late husband purchased land parcel Bukhayo/Mundika/1852 in 1977 and that they took possession immediately thereafter.

That her husband James Kimaru Kiptembur died in 1993 and she has been appointed  the administrator  of his estate.

That in 2008 the Defendant forcefully entered into the land and cut down the trees  alleging he was the registered  owner of the land.

That  she later established that the  land had been subdivided  into parcels Bukhayo/Mundika/6797 and 6798 but  the subdivision had not been captured in the survey map that she subsequently  obtained from Kakamega survey office.

That the Defendants  title to the land should be extinguished and  she  be registered as proprietor  as she has occupied  the land  for over 30 years.

That the  subdivision done on the parcel should be revoked and Defendant made to pay costs of this suit.

The Defendants filed their replying affidavit sworn on 9. 01. 2012  that is  now taken to be their defence, through M/S. Fwaya  Advocates.

DEFENDANTS’ AVERMENTS;

That they jointly bought one acre of land from Bukhayo/Mundika/1564 in 1974 and after subdivision, the one acre become parcel  Bukhayo/Mundika/1852 and was registered  with 1st Defendant.

That subsequently the 1st Defendant subdivided the parcel into two portions and transferred one to the 2nd Defendant .

That none of the Defendants has ever sold land to the Plaintiff.

That the Plaintiff has never resided or been in occupation of the suit land.

That the Defendant’s mother never sold any land to Plaintiff.

That the Defendants mother was not known as Nakhayo Omilo or Getrude.

That Defendant are not the administrators of their late mothers estates.

SUMMARY OF PLAINTIFF’S EVIDENCE

That she married James Kimaru in 1979 and stayed in a rented house though  her late husband had bought  land before he died in 1988.

That  in 2008,  she filed Busia Succession Cause No. 215 of 2008 and was appointed administrator of her late husband’s estate.

That  her late husband had bought Bukhayo/Mundika/1852 from a neighbor  called Wanjala in 1977, and her  late husband’s brothers and herself witnessed the transaction and the land was subsequently  registered in her husband’s names.

That  her late husband dug the pit for a latrine and had building materials delivered to the land before he died.

That Plaintiff has been cultivating on the land  growing food crops and trees.

That 1st Defendant whose,  wife was teaching in the same school  with the Plaintiff, interfered with the land after he came from Uganda.

That Defendants do not use the suit land.

That she does not know parcels Bukhayo/Mundika/8914 and 8915  which Defendants  are claiming.

That Plaintiff has never  seen the sale agreement under which her late  husband bought  the suit land from Michael  Wanjala in 1977 and does not also know the purchase price.

10.  That  Plaintiff  has had several cases relating to the suit land since 2007.

SUMMARY  OF DEFENDANTS EVIDENCE.

That both  Defendants wanted to own plots near the town and in 1974 they bought one acre out of Bukhayo/Mundika/165 from Michael Wanjala, Alex  Barasa and Charles Maende.

That after  completing paying the purchase price, the land was subdivided  creating parcel 1564  among others. That  Parcel  1564  was subsequently  subdivided  into parcel 1851  to 1854 and parcel 1852 transferred to 1st Defendant on 28. 2.1977.

That the Defendants later subdivided parcel 1852  into  parcels numbers 6797 and 6798 which  parcels were subsequently  renumbered 8914 and 8915  respectively.

That parcel  8914 was registered  in the names of the 1st Defendant and parcel 8915 in the names of 2nd Defendant.

That  the land was virgin  when the Defendants  bought it in 1974 and after clearing it they started cultivating on it.

That in 2008, the Plaintiff had claimed  ownership of the land before the Chief who gave her two weeks to avail supporting documents but did not do so.

That the matter was subsequently taken to the Land Control Board and the Plaintiff’s claim was dismissed.

That  Plaintiff had cut some euphobia  trees on the land  in 2008 and had some holes dug on the land but has never resided on it.

That Plaintiff  had deposited some building stones and sand and dug foundation in 2010 when this case was pending in court in 2010.

10.  That Plaintiff has not planted any trees on the land and that she had  fenced it after the court visit in relation on H.C.C.C. No. 9 of 2011.

`CONCLUSIONS.

That  according  to the copy of the register for parcel Bukhayo/Mundika/1852 produced  by the Defendants,  that parcel was created  from the subdivision of Bukhayo/Mundika/1564.

That parcel Bukhayo/Mundika/1852 was initially  registered  in the names of  Michael  Wanjala , Alex  Barasa and Charles  Maende on 23. 12. 1977 and subsequently  transferred to the names of Nicholas Kombo (1st Defendant ) on 28. 12. 1977.

That parcels Bukhayo/Mundika/1852 was subdivided  and register closed on 15. 2.2000 to create  parcels Bukhayo/Mundika/6797 and 6798 which were later renumbered  8914  and 8915 respectively for reasons that  those numbers had already been given to other parcels  as explained by DW 1.

That Alex Barasa testified as DW 3 and confirmed that his two brothers and himself had transferred land parcel Bukhayo/Mundika/1852 to 1st Defendant and they had had not sold any land to the Plaintiff.

That from the evidence availed, the Plaintiff has never resided on the suit land but has been using portions of it from  either,  2008 or 2010. This clearly shows she has not been in exclusive use of the suit land for a period  exceeding  twelve (12) years as claimed and  the remedy of prescription is not available to her.

That land  parcel Bukhayo/Mundika/1852  ceased to exist  on 15. 2.2000 when its register was closed upon subdivision to create parcel  6797 and 6798 which  were  later renumbered 8914 and 8915. That when  the Plaintiff filed her originating summons dated 29. 10. 2011,  the suit land described in the pleadings did not exist.  Also parcels  6797 and 6798 did not exist as they had been renumbered as parcel 8914 and 8915  respectively. That the Plaintiff did not move the court to amend the description of the parcels of land she was claiming to reflect  the current parcel  references.

That even  though Plaintiff claimed that her late husband had bought  the land described as Bukhayo/Mundika/1852 and that her late husband had been registered as proprietor of that land , she  did not avail  the land sale agreement  or any document to confirm her claim.  As the Defendants  have availed documentary  evidence that they were the owners of Bukhayo/Mundika/1852  and the two parcels subsequently  subdivided  from  that parcel, the  court therefore finds that the Plaintiff has failed to prove that the suit  land belonged to her late husband or herself.

That the  Plaintiff has also not availed  a copy of the grant to support her claim that she is the administratrix  of her late husband’s estate. Even  if she had provided  such a grant, she has also failed to show that the land parcel Bukhayo/Mundika/1852 or any of  the portions created from it after subdivision were parts of the estate of her late husband in view of the evidence adduced by DW 1, DW 2 and DW 3.

That the Plaintiff  in her evidence as PW 1  and during  cross examination disowned parts of the contents of her supporting affidavit sworn on 29. 11. 2011 in support  of the originating summons. She also  denied signing  the said affidavit which would mean the originating  summons filed herein  is without a supporting affidavit. Order 37  Rule 7(2)  of  Civil Procedure Rules states:

‘’    7  (2) The  summons shall be   supported by an  affidavit in which  a  certified  extract of the title  to the land  in question  has been annexed’’.

The effect of the Plaintiff disowning  the supporting affidavit leaves  the originating summons without the basis on which it is supposed to be based.  The originating  summons  is therefore not properly before  the court and is struck out.

That  for reasons  set out above, the Plaintiff  has failed to establish her claim  against  Defendants on a balance  of probabilities  and the suit is dismissed with costs.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 9TH DAY OF JULY, 2014.

IN THE PRESENCE OF;

JUDGE.