Barasa Ekapoloni v Grace Anyango Olando, District Land Registrar, Busia, District Surveyor, Busia & Attorney General [2015] KEHC 6518 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL APPEAL  NO. 45 OF 2011.

BARASA  EKAPOLONI……………………………….APPELLANT

VERSUS

1. GRACE  ANYANGO OLANDO)

2.  THE DISTRICT  LAND REGISTRAR, BUSIA).

3.  THE DISTRICT SURVEYOR, BUSIA…………RESPONDENTS.

4.  THE HON. ATTORNEY GENERAL)

(An appeal from  the judgment of the Hon. E.K. Keago, SRM delivered  on 21st  day of July, 2011 in Busia SPM.CC. No.360 of 2000)

J U D G M E N T.

BARASA  EKAPOLONI, hereinafter referred to as the Appellant ,being  dissatisfied  with the judgment  in Busia SPM. CC. No.360 of  2000, delivered  by Hon. H.E. Keago on 21st  July, 2011 filed this appeal setting  out the following  four grounds;

‘’ 1.    That the  learned trial Magistrate  erred in law and  in fact  in declaring that the Appellant  was not entitled  to the orders of  eviction from his land parcel No. South Teso/Angoromo/  -   (reference not complete) when he is the absolute proprietor  to the exclusion of anybody else. [Emphasize mine]

2.      The learned trial Magistrate erred in law and in fact in declaring the existence of a road of access on the Appellant’s land parcel    No. South Teso/Angoromo/1094 when P. Exb. 12 is to the  contrary.

3.       That the learned trial Magistrate erred in law and in fact  in  dismissing the Appellant’s  case against  the 1st Respondent   when  the 1st Respondent is using  the Appellant’s  land as road  of access and built on the remaining part.

4.      That the learned trial Magistrate  erred in law and in fact in  failing to declare that in the absence  of the evidence of the 2nd   and 3rd Appellants (Respondents), no  road of access exists on  his land and as such the 1st  Appellant  (Respondent) stood  to  be evicted .’’ (Emphasize mine)

The  Appellant prays for the lower court’s judgment regarding  eviction to be set aside and his claim for eviction be allowed with costs.  The memorandum  of appeal dated 19th August, 2011  names Grace Anyango  Olando, The District  Surveyor, Busia. The  District Land Registrar, Busia and The Hon. Attorney General as  Respondents and are hereinafter  referred to as 1st to  4th Respondents.

BACKGROUND.

The Appellant had filed SRM CC. No.360 of 2000 against six  Defendants.  The  Defendants included the four Respondents herein as 1st, 4th to 6th Defendants.  The  two others were Jonathan Wabala and Holy Redeemed Apostolic church as 2nd and 3rd Defendants.

The prayers in the amended plaint  dated 12th September, 2003 were as follows:

‘’  a.      Kshs.95,000/=

b.      General  damages, eviction and production order as   per paragraph  12A above.

c.      Any other  or further relief  this Honourable  court   may deem  fit and just  to grant.’’

That  during  the hearing, the Appellant testified  as PW 1 and called two  witnesses, who testified  as PW 2 and PW 3.  Among  the Respondents,  only  the 1st Respondent testified.  She testified  as DW 1.

The learned  trial Magistrate,  after setting  out the summary of the evidence   presented  by the parties and analyzing  the same found as follows;-

‘’…………………..I find  that the claim  of the Plaintiff   against      the 1st Defendant  will fail and the same is    dismissed.   Further,   since  the Plaintiff  admitted that he   wished to withdraw  the case against  the 2nd Defendant,         and that he had not filed any case against the 3rd   Defendant, the  same will be dismissed with costs payable   by the plaintiff.  On the other hand, l will enter judgment for general damages for Kshs.350,000/= against  the 4th, 5th     and 6th Defendants  with costs.  The 4th, 5th and 6th Defendants will also pay  costs of the 1st Defendant  as its  actions which resulted into her being made a party, otherwise  the case against the 1st Defendant  is equally dismissed.’’

The only party  who  preferred  an appeal was the Appellant herein and only on one  aspect of the judgment.  This  is the dismissal of his prayer for eviction.

This being  a first appeal the court is obligated to consider and revaluate the evidence afresh and make its own conclusion while bearing in mind that it did not see or hear the witnesses testify.  See Seller –vs-  Associated Motor Boat Company ltd [1968 ] E.A 123.

ANALYSIS OF THE EVIDENCE.

That the Plaintiff is the registered owner of South Teso/Angoromo/1094 on which he had constructed iron sheets  rental  structures with 11 rooms.  That the Plaintiff had  a boundary dispute  with the 1st Defendant and he called the surveyor.  The Surveyor visited the land but did not give the Plaintiff a copy of his report.

That later the Plaintiff’s structures were demolished on orders issued in Busia SPM.CC. No.288 of 2000 during which some Kshs.95,000/= which he had kept  in one of the rooms went missing.

The Plaintiff stated that the 1st Defendant had constructed  houses on part of his land.  He produced copy of the judgment  in Busia SPM.CC. No. 288 of 2000 where the 1st Respondent was the Plaintiff while Jonathan Wambala and Holy Redeemed Apostolic Ministries were the Defendants.  The court had in its judgment in that case,among others ordered as follows;-

‘’…………..The Plaintiff is ordered to surrender and transfer  to the 1st Defendant from her land  an area of 0. 014 hectares and bear the expenses of the transfer  of the land to the 1st Defendant the market value  of the land encroached assessed by the District valuer,  Busia or any lisenced and practicing valuer.  The semi-permanent houses constructed along the four metres access road accessing to parcel number 2292 and 2291 and are marked  ‘’mud houses’’ 1, 2, and 3 ‘’ respectively  in Exhibit D4 to be demolished to pave way for the surveyed access road.’’

The 1st Defendant stated that she is the registered proprietor of land parcel South Teso/Angoromo/2292 and had filed Busia SPM.CC. No.288 of 2000.  That the court ordered that the surveyor to visit the suit land and make a report.  The surveyor’s report indicated that the Plaintiff herein had houses  on the road  of access and the court ordered that they be demolished.  The 1st Defendant produced copies of the Land Registrar’s and surveyor’s report plus proceedings in Busia, HCCA. No. 1 of 2003 as exhibits. The record of appeal in Busia HCCA. No. 1 of 2003 shows that the two Defendants in Busia SPMCC. No.288 of 2000 had appealed against the judgment of the learned trial Magistrate and the appeal was allowed in terms shown hereinafter.

The Land Registrar’s and Surveyor’s reports dated 19. 2.2000 which formed part of the evidence adduced before the trial court, had noted the following, among others.

‘’  (iv)    There are semi permanent  houses  constructed along the 4 m road accessing to parcel No.2292  and 2291  are marked  ‘’mud houses 1, 2, and 3 ‘’  respectively. [see surveyor’s report marked   Exhibit 3].

(x)     The area encroached by the proprietor of  No.2292    onto the road is 20 m by 4 m = 0. 008  Ha.’’ [see surveyor’s report marked exhibit  3].

(xii)   Proprietor of 2292 has left out part of his land   measuring 7m by 8 m to yet another neighbour  as shown on our mutation forms.’’

There was no finding made  by the Land Registrar  and Surveyor in their reports dated 7th September, 2000 to suggest   that  the 1st Defendant’s  (Grace Anyango Olando’s)  land parcel South Teso/Angoromo/2292  had encroached onto  parcel South Teso/Angoromo/1094  which belonged to the  Plaintiff.

That the evidence of PW 3 (Alice Wepukhulu), that South Teso/Angoromo/2292 had encroached onto South Teso/Angoromo/1094 by 0. 032 hectares was found by the trial court to be unreliable as she was not among the officers recognized by the Registered Land Act, Cap 300 of Laws of Kenya (Repealed under Section 109 of The Land Registration Act, 2012) to determine boundaries. The authority  to determine the boundary disputes vests in the Land Registrar and Section 21 of the Registered  Land Act (Supra) is relevant and states;

‘’ 21……………………..

(2)   Where any uncertainty or dispute arises as to the position of any boundary, the Registrar, on  the application of any registered party, shall, on such  evidence  as the Registrar considers  relevant, determine and indicate the position of  the uncertain or disputed boundary.

(4)     No court shall entertain any action or other  proceedings relating to a dispute as to the boundaries of registered  land unless  the boundaries have been determined as provided                             in  this section.’’

The provision of section 21  (4)  of the Registered Land Act, (Supra) has  been retained as section 18 (2)  of the Land Registration Act, 2012 in the same terms. The law being then and now, that the authority to determine boundaries  vests with the Land Registrar, the learned trial Magistrate was correct to hold as he did  that;

‘’………….The  report  by PW 3  was unadmitted since she admitted that she was not recognized by the Institute of Surveyors.  She could not therefore give a competent report hence this court cannot rely on her report.  I wish  to further state that  the report by the Surveyor  found that the Plaintiff  [Appellant] had encroached into  the access road and ordered removal of the structures……….Hence  the portion where  demolition took place having been found to be access road, no eviction order will issue  in favour of the Plaintiff [Appellant]  as the land does not belong to him but the public.’’ [Emphasize mine]

That though the appeal against Busia SPM CC. No. 288 of 2008 in Busia HCCA. No. 1 0f 2003 was allowed, the court confirmed the findings  of the Land Registrar and Surveyor and issued orders to evict  the Respondent in the following terms:

‘’…… Having found that Grace had trespassed onto   Jonathan’s land parcel 912, the court had  no option   but to order  for her eviction. That seems a pertinently   harsh outcome but the law does not allow otherwise.’’

CONCLUSION.

That having found as above,  and noting that this appeal was only on the dismissal of eviction prayer, the court finds that the Appellant has failed to present before  this court sufficient or any grounds to interfere with the learned trial Magistrate’s  order or decision  of 21st, July, 2011. The court  upholds the learned  trial Magistrate decision on the eviction prayer.  The appeal is therefore dismissed with costs.

That the following orders  are therefore issued;

The appeal is dismissed with costs.

The learned trial Magistrate’s decision of 21st July, 2011 rejecting the prayer of eviction  is upheld.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  26TH DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF;PRESENT….. APPELLANT

…PRESENT….1ST RESPONDENT

…N/A…………..2NDRESPONDENT

…N/A…………...3RDRESPONDENT

N/A…………….4TH RESPONDENT

MR. ONSONGO  FOR ……...APPELLLANTS COUNSEL

MR. ASHIOYA FOR ………..1ST RESPONDENTS COUNSEL.

JUDGE.