Herbart Ehara v Linet Ajiambo Ochieng [2015] KEHC 7000 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH OF KENYA AT BUSIA

ELC. NO. 116 OF 2013 (FORMERLY  HCC. NO. 39 OF 2010)

HERBART   EHARA …………………………………...……..PLAINTIFF

=VERSUS=

LINET AJIAMBO OCHIENG……………………………… DEFENDANT

J U D G M E N T.

HERBART EHARA  hereinafter referred to as the Plaintiff, commenced  these proceedings through the originating summons dated 30th June, 2010  against Linet  Ajiambo Ochieng, hereinafter as the Defendant. The Plaintiff case is that he has acquired  by way of adverse possession a portion of land measuring 0. 6  hectares  out of Samia/Butabona/1589, and posed the following six questions for determination;

a) Whether  the Applicant  purchased a portion of land measuring  3 acres out of Samia/Butabona/1589, at an agreed  consideration  of Kshs.3,000/= in 1978.

b) Whether the portion  the Applicant  purchased was clearly  demarcated, whether  he took possession of the same and have been using it to date.

c) Whether  the Applicant  has been in open and notorious possession  of the land measuring  0. 6 hectares out  of Samia/Butabona/1589 for a period  exceeding 12 years continuously and without interruption.

d) Whether the Respondent’s title  to the said portion of land became  extinguished upon expiry  of 12 years  from the time the Applicant took possession of the said land.

e) Whether  the registration of the Respondent as owner of the portion of land measuring 0. 6  hectares out of Samia/Butabona/1589  should be cancelled and Applicant  registered as the owner of the portion thereof.

f) Who should pay the costs of this case.

The Plaintiff seeks for the following prayers:

1. That the Respondent’s rights over the portion of land measuring  0. 6 hectares out of Samia/Butabona/1589 got extinguished  by adverse possession  upon expiry  of the 12 statutory years when the Applicant was in possession.

2. That the Respondent be perpetually barred from  taking and or using the said portion of land or any part thereof.

3. That the Applicant be registered as the proprietor of the portion of land measuring 0. 6 hectares out of Samia/Butabona/1589.

4. That the Respondent do pay the costs of this case.

The originating summons is supported by the  Plaintiff’s  affidavit  sworn on 12th July, 2010 to which  is attached  a copy of a register for land parcel  Samia/Butabona/1589 measuring  0. 6 hectares in the names  of Linet  Ajiambo Ochieng.

In answer  to the Plaintiff’s  claim, the  Defendant filed  the replying affidavit sworn on 28th  October, 2010 praying for the originating  summons to be dismissed with costs.

The court gave directions on 15th June, 2011 on the filing of evidence  affidavits by the parties.  The Plaintiff filed his evidence affidavit  sworn on 27th June, 2011 with several annextures.  He also filed evidence affidavits of John Makokha Ongode, Sabsatian  Pascal Sikuku and Hellen Barasa Ochieng all sworn on 27th June, 2011. The Defendant filed her evidence  affidavit sworn on 25th July, 2011 with several annextures and that of Aloys Okwira Muchere also sworn on the same date.

M/S. Bogonko, Otanga  & company advocates appeared  for the Plaintiff while M/S. Ashioya  & company  advocates  appeared for the Defendant.  The Plaintiff testified as PW 1 and called Sebastian Pascal Sikuku, John Makokha Ongode  and Hellen  Barasa Ochieng who testified  as PW 2 to PW 4 respectively.

SUMMARY OF THE PLAINTIFF’S EVIDENCE.

1. That Plaintiff purchased three (3) acres of land out of Samia/Butabona/87 from John Ongode at the agreed purchase price of Kshs.3,000/=.

2. That the said  John Ongode demarcated the portion the plaintiff bought  and allowed him vacant possession.

3. That the Plaintiff has been using the said portion ever since without any interruptions.

4. That on 13th May, 2005, the land parcel Samia/Butabona/87 was subdivided into parcels 1588 and 1589.

5. That on 28th February, 2008, the  Defendant  had land parcel Samia/Butabona/1589 which comprised the portion Plaintiff  had purchased and occupied to her names.

6. That on 15th January, 2009, the Defendant commenced eviction proceedings against the Plaintiff in Busia  PMCC. No. 7 of 2009.

7. That the  Plaintiff has been in possession of land parcel Samia/Butabona/1589 for a period exceeding  12 years and is therefore entitled to be registered as  proprietor of the said parcel of land.

SUMMARY OF DEFENDANTS EVIDENCE.

1. That the Defendant is the registered owner of Samia/Butabona/1589.

2. That she has had several cases against the Plaintiff and therefore  the Plaintiff has never been in open peaceful and  notorious  possession of 0. 6 hectares of land out of Samia/Butabona/1589.

3. That  she bought  her land from Hellen Barasa (PW 4) who  was the administratrix of the estate of Ochieng Nabongo and obtained  title to the land after suing  the said vendor in Busia PMCC. No. 450 of 2006.

ANALYSIS OF THE EVIDENCE.

1. That the Plaintiff took possession of a portion land parcel Samia/Butabona/87, whose  acreage was not defined as no formal survey was done, in  1978 under a sale agreement between him and the then registered  owner, namely John Ongode. This  was confirmed  by the widow of the said John Ongode who testified as PW 4.

2. That there  is no evidence  availed to show whether  the said vendor, John Ongode applied for and obtained Land Control Board Consent  to subdivide  Samia/Butabona/87 so as to excise  the portion bought by the Plaintiff. There is also evidence to show whether the said John Ongode and the Plaintiff herein applied for and obtained Land Control Board  consent  to transfer  the portion subject matter of their sale agreement.  In terms of  section 6 (1)  of the Land Control Act Chapter  302  of Laws of Kenya the sale agreement  between John Ongode and Plaintiff was void as there is no evidence  that Land Control Board consent was obtained within six months of the date of the agreement.

3. That the  Plaintiff  did not take any steps to ensure John Ongode had transferred  the portion he had bought  during the  life time of John Ongode  or ask for a refund of the money pad  which is recoverable as provided for under section 7 of the  said Act.

4. That the Plaintiff occupation and possession of the portion of land parcel Samia/Butabona/87 was with the consent of the registered  owner under a land sale agreement. The occupation and possession was therefore not  adverse  or in consistent with the title of the owner namely John Ongode or his estate. Heh\ Hhhhhhhhhh Hellen  Barasa  Ochieng  (PW 4) who is widow  to John Ongode confirmed  that her late husband  had sold a portion  of land to the Plaintiff.

5. That the  Defendant  became the registered proprietor  of Samia/Butabona/1589 which was one of the two parcels subdivided from  Samia/Butabona/87 on 28th February, 2008. The time  in relation to adverse possession could not have started to run against the Defendant before  she became the registered  owner.  By the time this suit was commenced through the originating summons dated 30th June, 2010  and filed  on 9th August, 2010  the period that had passed from 28th February, 2008 when Defendant  became the registered  owner  of Samia/Butabona/1589 is about two years and six months. Even  if the Plaintiff  had been in occupation and  possession of a portion of land comprised in the said title, the prescribed period of 12 years  had not elapsed from the time Defendant got  registered with the land to the time  the originating summons  was filed.

CONCLUSION

1. That the Plaintiff should have lodged his claim against the estate of John Ongode after the vendor died before transferring the portion he had bought  to him.  The Plaintiff could  have also raised  an objection if the subdivision of Samia/Butabona/87  to create Samia/Butabona/1589 and the  other portion was encroaching  onto the portion he claimed while both the Plaintiff and Defendant  had separately bought portions of land  from Samia/Butabona/87, only the Defendant  got her portion specified  through formal  subdivision and transfer. The Defendant  become the registered  proprietor of Samia/Bu     tabona/1589 on 28th February, 2008 and her interest prevails over those of the Plaintiff.

2. That the Plaintiff  claim  over the suit  land under adverse possession  principle  fails in view of various  superior court  decisions to the effect  that where it is found that ‘’Occupation  is derived from the proprietor of the land in the form of permission or agreement  or grant, then  such occupation is not adverse.’’ See Benjamin K. Murima & Others  -vs-  Gladys Njeri C.A. NO. 213 of 1996, Wambugi –vs- Njuguna(1983) KLR 172. That  it is  worth to note  that the Plaintiff’s  claim is not against  John  Ongode  who sold the land to him or his estate.  Had  that been the case and  he had shown his occupation  has been adverse, time would have started being counted from 1978 when he took possession. The Defendant herein only became  the registered  owner of the suit land on 28th February,  2008 and 12 years  had  not passed by the time this suit was filed.

3. That for reasons  set out above, the court  finds that the Plaintiff has failed  to establish  his case to the standard required  and his claim  is dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 28TH DAY OF  JANUARY, 2015.

IN THE PRESENCE OF  PRESENT IN PERSSON PLAINTIFF

PRESENT IN PERSON DEFENDANT

MR. BOGONKO FOR PLAINTIFF.- ADVOCATE

MR. ASHIOYA FOR THE DEFENDANT – ADVOCATE.

JUDGE.