Fredrick Philip Khayo v Edward Wanjala [2014] KEHC 5347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL CASE NO. 60 OF 2005

FREDRICK PHILIP KHAYO ….......................................... PLAINTIFF

VERSUS

EDWARD WANJALA …................................................... DEFENDANT

JUDGMENT

1.         This suit was commenced by an originating summons filed on 4th July 2005 and in it, the Plaintiff seeks prayers that he is  entitled to be registered proprietor of  six (6) acres  comprised  in L.R. No. E. Bukusu/N. Nalondo/79 by way of adverse possession. He also sought  costs of the suit.

2.         The O.S.  was supported by the grounds on the face of  it and the supporting affidavit sworn by the Plaintiff. The suit is opposed and  the Defendant filed a replying affidavit  denying the Plaintiffs claim. Thereafter directions were taken and the matter proceeded to full hearing by adducing both affidavit and oral evidence.

3.         Before the suit proceeded, the Defendant filed an application seeking  temporary injunction under Section 63 (e) of  the Civil Procedure Act   to issue against the  Plaintiff in respect of the suitland.  From the   record, the application  was withdrawn on 14. 3.2007.

4.         The suit proceeded to hearing with the Plaintiff calling 4 witnesses, while the Defendant was the only witness.  The Plaintiff's  case was heard by two different Judges. The  Plaintiff testified as PW1. His  evidence  is that he lives on the suit plot E. Bukusu/N. Nalondo/79. He knows the  Defendant as he is a neighbor and son of Silvano Wepukhulu Kuranda who sold  him this land.  The Defendant is also the administrator of the estate of  Silvano Wepukhulu Kuranda –      deceased.

5.         PW1 said he bought the suitland on 29. 1.1976 at Kshs. 4800/- and took possession immediately. He produced the sale agreement as Pex. 2 (a) and its transaction as  Ex. 2 (b). He has continued to live on this land todate.   According  to him, he has put up houses on   the land, planted trees, coffee, maize etc.  His seven (7) wives are all      living on this land.  He also produced  a copy of  the application  for Land Control Board consent as Pex. 3 and  Green Card for the land as   Pex. 4. That the Defendant waited for his father to  die then began disturbing him.  He asked the court to transfer the land to   him.

6.         In cross examination  by Mr. Ocharo, PW1 said the seller's name in Ex.3 is not written  as Silvanus but Situko Nabiswa.  Silvanus did  not also have anyone  else witness  the agreement. He has never received any letter from the Defendant's  advocate or chief asking him  not to interfere with the land.  He said about 20 of his  childrenlive on this land  10 of which are married plus 4 of his wives.  He has 500 coffee  trees on the land and  takes his coffee to Kalaba  Society. In re- examination, he said he bought the suit land from Silvano  and has no problem with Situko Nabiswa.

7.         PW2 was Alice Mandu. She lives in Turbo.  She knows the Defendant  having met him in 1976.  Previously she  lived on plot No. 79 with her husband Dismas Mandu on a portion measuring 1 acre which they had bought from Silvano.  She was present to witness  Silvano sell  6  acres of the suit land to the Plaintiff on 29. 1.1976. She wrote her   name in the agreement. Silvano refunded them their  money for the 1 acre which the Plaintiff took over.

8.         In cross examination by Mr. Ocharo advocate for the Defendant, she said she did not know Situko Nabiswa.  Her name was recorded in   the   agreement by the clerk who  prepared it but she did not sign as  she was busy packing to leave.  She had visited the Plaintiff afterwards and found he had put up some permanent houses on     this land.

9.         Dismas Mandu Kapkotini testified as PW3. He lives in Mokoyet village within Trans-Nzoia West district.  He had bought one  (1) acre of land    from Silvano's  comprised in land E. Bukusu/N. Nalondo/79 between  1971 – 1976 and paid the full price. On 29. 1.76, another sale agreement was  made between the Plaintiff and Silvano (Defendant's   father) for six (6) acres. He was the clerk and a witness and saw  the Plaintiff pay Silvano Kshs. 4,800=/ part of which Kshs. 800/=   was   refunded to him for his one (1) acre  he had surrendered.  He  was also aware the Plaintiff moved into the land  immediately  and has  used/developed the land.

10.       Under cross-examination, PW3 stated that Silvano put a thumb-print on the sale agreement  as he did not know how to  read and write. None of Silvano's family was present when the agreement was drawn.  He said the Plaintiff also owns  L.R. E.Bukusu/N. Nalondo/81 which borders the suit property.

11.       He continued that the Plaintiff did not live on  land reference  No. 81 but lives on L.R.  No. 79.  The Plaintiff's three (3) sons have  also  constructed  houses on the suit property.

12.       PW4 is Bernard Wafumbwa who  lives in khalaba  village within Bungoma South District. He knows the parties in this suit.  In his  affidavit evidence filed in court,  He said he is an  uncle to the Defendant.  He witnessed Silvano sell land measuring 6  acres to the Plaintiff. He also remember that PW3 was refunded kshs. 800/=. He  confirmed the Plaintiff assumed vacant and peaceful occupation of  the sold portion. However his cousin (Silvano) died before    transferring the land to the Plaintiff. He further said the Plaintiff has developed  the land with several permanent and semi permanent houses, animal shed and  erected barbed wire and live fence all  around it.  The Plaintiff has also planted bananas, stems of coffee,  sugarcane etc.  At the end of PW4's  testimony, the Plaintiff closedhis case on 17. 10. 11.

13.       Edward Wanjala (Defendant) gave his evidence before me on 20. 6.13.  He said  that he resides in Khalaba area. Silvano Kuranda –  deceased is his father. He died in 1990. He took out grant in respect of his estate on 2004.  After the grant, he became the registered owner (pex. 4). He stated the Plaintiff is his neighbour on parcel No. E.Bukusu/N.Nalondo/81. He denied the Plaintiff bought  land from  his father in 1976 neither did he sue the Defendant's father.

14.       DW1 confirmed that the agreement did not contain his father's ID No. nor the  plot number and his father did not have any of  his family members as his witnesses. He was  an adult when the agreement  was drawn.  He produced a copy of his father's ID card which gave a different number from the one indicated in Pex. 3 (application for           consent).

15.       According to DW1, the Plaintiff has never used this land and only  began using it in  2006.  He objected to the prayers sought by the  Plaintiff. In  cross examination, he said the Plaintiff became their  neighbour in 1976. Further that the Plaintiff  has carried out   developments on parcel No. 81.  He denied  demanding the Plaintiff  to vacate plot 79 as the Plaintiff has never lived  on it.   He  wants to share the land to his brother and sisters. The  Defendant  then closed           his case.

16.       The parties advocates' filed their written submissions  which I have considered while writing  the judgment. I wish to  adopt the issues  brought out by the Defendant in their submissions as the  questions for this court to determine  which are;

i.          Whether  the late Silvano Wepukhulu Kuranda sold the Plaintiff  6 acres comprised in title nos. E. Bukusu/N. Nalondo/79.

ii.         Whether the Plaintiff obtained vacant possession of  the  6 acres in  1976 or at all.

iii.       Who should  bear the costs of this suit.

17.       In Pex. 2 (a), the sale agreement drawn on  29th January  1976  was between Silvano Wepukhulu  Kuranda (deceased) and the  Plaintiff.  As per the document, the late Silvano sold six (6) acres out of his 17 acres of land to the Plaintiff for Kshs. 4,800/= paid in full.  No mention  is made of the land reference number that was being sold.        However  in an undated application for board consent it is indicated   for parcel  No. 79 and  consent was being  sought to subdivide and transfer 2. 4 ha to the Plaintiff. The price is also indicated at   Kshs. 4,800/=. Silvano is said to have  thumb printed on both the form and the agreement.

18.       All the Plaintiff's witnesses i.e PW2, 3 & 4 testified that they were  present to witness the sale take place.  They all confirmed the  Plaintiff took possession of this land in January of 1976. The Defendant denied a sale  ever took place.  That  he would have been a witness as he was an adult when the agreement was drawn. Under Sec. 3 (3) of the Law of Contract Act,  for any sale to be effective,  there should be a note or memorandum in writing giving the names of the parties, the purchase price, parties signatures and that of witnesses. I find that the agreement  produced as pex. 2 (a) fulfilled all these requirements set out in  Sec. 3 (3) of the Law of Contract  Act. It was in writing, bore name of the parties and their signatures.  It also indicated the purchase price and had witnesses. The  Defendant did not say  under what provision of the law a sale of land  agreement would be invalid for lack/absence of a family member not being a witness.

20.       The Defendant also stated that the  thump print on the  document  does not resemble the one on the ID.  This is an issue that would have been resolved by a handwriting expert.  No such report  was presented to this court.  The Defendant averred further  that no  identity  number was included in the agreement.  The agreement did not indicate the Id numbers of all the parties and their witnesses. I do find  that failure to  write the ID numbers in my view did not invalidate  the sale.

21.       In reference to Pex. 3, the Defendant submitted the document had  a  different ID number and the thumb print is also obliterated.   He  relied in the case of Ndiema Sambuni Soli vs. Elvis Kimutai  Chepkeses [2010] e KLR and under lined  the relevant portion of  the  judgment they relied on. I have read the case cited but I find it  distinguishable from the present case. In the cited case, the Appellant admitted the agreement was altered and there was inconsistency on the  size of  the land bought  unlike here.

22.       In Ndiema case supra, some forms were signed  when the proprietor was already deceased. In the instant case, no such event has taken place. The Plaintiff and his witnesses  maintained he bought  six (60 acres.  As to whether the whole parcel of land measured 6. 8 ha and   not 4. 4 ha as indicated in the sale agreement does not  in  my view   vitiate the Plaintiffs' claim for 6 acres.

23.       On the question No 2, the evidence adduced show the Plaintiff took  vacant possession of the 6 acres immediately the agreement was  executed. This is  confirmed by the Defendant when he said he knew  the Plaintiff in 1976 when  he became their neighbor.  Although the Defendant alleged the Plaintiff settled on L.R. E.Bukusu/N.            Nalondo/81,there was no supporting evidence to verify this  averment.

24.       Has the Plaintiff established a claim for adverse possession?  The Plaintiff said in his evidence  in chief that 7 of his  wives live on this plot.  On cross examination, he said 4 of his wives live on it. Ten (10)   of his sons have married and also live on the suit property with their  families. The Plaintiff farms the land with crops such  as coffee,  bananas and maize. PW2, 3 and 4 confirmed this. PW4 who  said  he is an uncle to the Defendant and a neighbour to Plaintiff said the   Plaintiff  erected a  barbed wire and live fence round the  suit land.. This means the portion the Plaintiff claims is identifiable and is being  utilized.

25.       It Is clear from the evidence that the Plaintiff settled on the land in 1976  and carried out activities highlighted above.  This  means he dispossessed the owner Silvano of the land. In Sisto Wambugu vs. Kamau Njuguna [1983] KLR 172, it was held that  “dispossession of  the proprietor that defeats his title are acts which are inconsistent with his enjoyment of the  soil   for the purposes of which he intended to use it for a period  of over  12 years”.This was restated in the case of Warije Vs. Saikiwa [1984] KLR 284. The Defendant submitted  no building plans  were shown to this court  to prove permanent buildings   were  erected. This court takes judicial notice of the  fact that  You   don't require building  plans  for buildings outside the  Municipality. There was no evidence led that  this  land was falling under  a  municipality.

26.       In establishing when time began to run, this was  3 months after the period when Land Control Board  consent ought to have been obtained. The Defendant submitted that the Plaintiff failed to sue  his  father (Silvano) between 1976 to 1990.  In Mwinyi H. Ali Vs. A.G. and Philemon Mwaisaka Wanaka Civ. Appeal No. 125 of 1997 (digest on civil  case law & procedure par. 1340). The court said adverse possession can only be against the owner or legal representative,  which can only be done by making them parties to the suit.  In the  instant suit such  claim is brought against the legal representative   and there was nothing to bar the Plaintiff from doing  so.  In any event the Plaintiff said they lived  peacefully with Silvano  and the Defendant began disturbing him in 1990 after the death of  his father.   Somehow it is the Defendant who  awakened    the Plaintiff to commence the suit.  The Plaintiff would have been  precluded   from  bringing this claim had the land been transferred   into each of the  names of the beneficiaries. See Titus Mutuku         Kasuve Vs. Mwaani Investments Ltd. & others, Civ. Appeal No. 35 of 2002.

28.       In conclusion, I  make a finding that the Plaintiff has proved his case  as required by the law.  Consequently I make  the following orders;

i.  That  the Defendant be and is hereby directed to forthwith  execute necessary land documents transferring to the Plaintiff land  measuring 6 acres comprised in  title No. E. Bukusu/N. Nalondo/79

ii.   The Plaintiff to bear the incidental costs related to processes of transferring  and registering the said documents in his name.

iii.       In default of the  defendant complying with order i) above, the deputy registrar of this court to  execute the necessary  documents to transfer 6 acres of the  land comprised in E. Bukusu/N. Nalondo/79.

29.       Costs  is a discretion of the court. In this instant, I order that each party to bear their  respective costs of the suit.

DATED, SIGNED and DELIVERED  this 13th day of May of  2014

A. OMOLLO

JUDGE.