Jacob Adungo Odakai v Folobia Aujo Emokolo & Beatrice Tata [2015] KEHC 6707 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

ELC. NO. 70 OF 2014 (FORMERLY HCC. 18 OF 2010)

JACOB  ADUNGO ODAKAI...........PLAINTIFF

VERSUS

1.  FOLOBIA AUJO EMOKOLO

2.  BEATRICE TATA.................DEFENDANTS

J U D G M E N T

JACOB ADUNGO ODAKAI  commenced  this suit against FALOBIA AUJO EMOKOLO  and BEATRICE  TATA, hereinafter referred to as 1st and 2nd Defendants respectively, through the originating  summons dated 12th April, 2010.  His claim was for three (3)  hectares out of South Teso/Angoromo/419 on the basis of adverse possession.

The  Defendants opposed the claim and filed a replying affidavit sworn by Folobia Aujo Emokolo on 12th May, 2010 only conceding to giving the Plaintiff one acre which they said he occupied  with the consent of their deceased husband, Kalisto Ojuang.

Through the court’s directions of 14th June, 2011 , the originating summons and replying affidavit were   deemed as the plaint and defence respectively.  The parties  were then directed to file evidence affidavits. The plaintif’s evidence  affidavit and  those of his two witnesses,  namely Safario Agwala Michael and Emmanuel  Ikapel Ilukol, were filed on 6th December, 2011.

The evidence affidavit of 1st Defendant sworn on 5th December, 2011 was filed on the same date. During the hearing  Mr. Otsula for Areba Advocate appeared  for the plaintiff, while Mr. Otanga appeared for the Defendant.

The Plaintiff testified as PW 1 and called two witnesses namely, Saferio Agwala Michael and Emmanuel  Ikapel Ilukol who  testified as PW 2 and PW 3 respectively. The  Defendants  called only one witness, Falobia Aujo Emokolo, who testified  as DW 1.

SUMMARY OF PLAINTIFF’S EVIDENCE.

1. That the  suit land belonged to the father of  the Plaintiff  and was registered in the names of the husband to the Defendants,  who is since deceased.

2. That the Defendants  husband,  namely Kalisto Ojuang, registered the suit land in his names fraudulently and without the consent of the plaintiff in 1973.

3. That the Plaintiff was awarded 3. 0 hectares of the suit land which he had been using by the Land Disputes Tribunal, but Kalisto Ojuang died before that could be effected.

4. That the Defendants had the suit land transferred to their names secretly.

5. That  the  Defendants’ rights  over the three  hectares occupied by the Plaintiff got extinguished at the expiry of 12 years of the Plaintiff’s occupation and the same should  be registered in his names.

SUMMARY  OF DEFENDANTS’ EVIDENCE.

1. That the suit land South Teso/Angoromo/419 was registered  in the names of their late husband, Kalisto Ojuang.

2. That the  late Kalisto  Ojuang had allowed the Plaintiff to settle on one acre of land.

3. That on 15th April, 1999, the Plaintiff lodged a claim before the Amukura Land Disputes Tribunal over the portion of land and the tribunal awarded him  three (3)  hectares.  That  the late Kalisto died before the award  could be adopted as judgment of the court.

4. That  the Plaintiff continued using the one acre of land and when the Defendants  filed  Busia H.C. Succession Cause No. 20 of 2001, the Plaintiff filed objection proceedings claiming 3 hectares  of the suit land but was  not successful.

SUMMARY  OF PLAINTIFF’S COUNSEL’S SUBMISSIONS.

1. That the suit land South Teso/Angoromo/419  was family land  for both the Plaintiff and his brother, the late Kalisto.

2. That  the husband to the Defendants, the late Kalisto,  had been registered with the suit land as trustee for the Plaintiff but died before he could give the Plaintiff title to his share.

3. That the Defendants  filed Succession Cause of their late husband’s estate without  the Plaintiff’s  knowledge and that  the tribunal had awarded him 3 hectares during the lifetime of the late Kalisto.

4. That  the Plaintiff who  was born in 1948  has lived on the suit land   since birth and has five houses on it. That  the Plaintiff has  five sons who are married and also live on the said land whose boundary is intact.

5. That the Defendant’s title to the suit land should be cancelled to allow 3 hectares  curved out and transferred to the Plaintiff.

SUMMARY OF DEFENDANTS’ COUNSEL’S SUBMISSIONS.

1. That Plaintiff has failed to prove that he has acquired a portion of South Teso/Angoromo/419  through adverse possession for reasons that he settled on the land with the then registered owners consent.

2. That the portion of land the late Kalisto gave Plaintiff was one acre and that he  has been using it continuously, peacefully and without interruption form anybody.

3. That after the Plaintiff’s  objection in the Succession Cause No. 20 of 2001 was dismissed, the  Defendants  were issued with the grant which was consequently confirmed.

4. That the Defendants  have set aside  the portion the Plaintiff has been using.

5. The Defendants’  counsel referred the court to Nakuru C.A No. 231 of 1999 Njuguna Nadatho –vs- Masai  itumo & 2 others and   Alex  Njonjo  Kamau Gitongo  [2014] eKLR and submitted  that the Plaintiff’s occupation of the one acre of the suit land was with permission and therefore  not adverse to the title  of the registered owner.

6. That this suit was  unnecessary  as the Plaintiff  is at liberty to secure the registration of the one acre he has been using.

CONCLUSION.

1. That the suit land  South Teso/Angomo/419  was on first registration on 7th November, 1973 registered  in the names of Kalisto  Ojuang. That the said Kalisto Ojuang was the younger brother to the Plaintiff and husband  to the Defendants. The  late Kalisto had on being registered  as proprietor of the said land  acquired    absolute ownership of the land in terms with Section 27 of the Registered land Act (Now  repealed), Chapter  300 of the Laws of Kenya. The rights  of a registered proprietor  were as set out  under Section 28 of the said Act and could only be challenged  in accordance of the said Act.

2. That though  the Plaintiff claimed that the suit  land was family land and should  have been registered  with his parents names, he  did not offer any evidence  why  that did not happen.  However, the evidence available  leads the court to conclude that their parents had died by the time the land  was registered. Though  the Plaintiff indicated that the late Kalisto  and himself lived  in Kampala until 1971, it  is not clear  how then Kalisto got registered  with the suit  land (if  indeed the suit land was family land) instead  of in his names as  the older brother.

3. That the evidence  availed by both the Plaintiff and Defendants shows that  the Plaintiff lived peacefully on the suit land with the family of his late brother until  sometimes in 1999 when the Plaintiff lodged a complaint on the size of the land he was using. This clearly  shows that  upto  the year, 1999, there was no dispute  between  Plaintiff and the registered owner of the suit land. The Plaintiff had up to 1999 occupied  the land peacefully with the knowledge of the registered owner  and time for adverse possession could not start to run in his favour during that period.  In the case of Alex Njonjo Kairu & 3 others –vs- John Kamau  Gitongo [2014] eKLR the court of Appeal citing the holding in Wambo –vs- Njuguna (1983) KLR 173 held as follows;

‘’where  the claimant is in exclusive possession of the land  with leave and lisence of  the appellant in pursuance to a valid sale agreement, the possession become  adverse and time begins to run at the time the lisence is determined . Prior  to the determination of the lisence, the occupation is  not adverse but with permission. The occupation can only be either with permission or adverse, the two concepts cannot co-exist.’’

Also  in the case of Benjamin  K. Murima & Others –V- Gladys  NjeriC.A No 213 of 1996 the court  held as follows;-

‘’  The issue of whether  or not there is adverse possession one only needs to look at the position of the occupier  and if it is found that the occupation is derived from the proprietor  of the said land in the  form of permission or agreement or grant, then suchoccupation is not adverse, but if it is not so derived, then it is adverse….’’

The Plaintiff herein has failed to show that his occupation of a portion of the suit land was adverse to the title of the original registered owner, Kalisto Ojuang. His evidence was that he was on the land by right as it belonged to their family and therefore adverse possession cannot arise as he could not have been in adverse possession of the land he believed belonged to him by right.  The contention of the Defendants is that Plaintiff use of the portion of the suit land was with permission of their husband and after his death, their permission as administrators of his estate and  adverse possession does not therefore arise.

4. That though the Plaintiff claim he has been in occupation of three hectares, the evidence adduced by PW 2 and the Defendants  is that he has been occupying  about one acre of the suit land. The  Plaintiff had lodged a complaint with Amukura Land Disputes  Tribunal in 1999 against the Defendants  husband over the size of the portion of land and the tribunal is said  by both parties to have awarded him 3 hectares. The tribunal award does not appear to have been filed with the subordinates  courts for adoption as judgment of the court as required under section 7 of the Land Disputes  Tribunal Act (Now Repealed) No party  seem to have preferred an appeal with the Provincial  Land Disputes  Appeals  Committee under Section 8 (9) of the said Act. This  court cannot tell from the material  provided whether the late Kalisto  Ojuang had known of the tribunals award by the time he died as no copy was availed to confirm  whether it was read  to the parties and if so, when.  That notwithstanding , it  is important  to remember that the power  of the tribunal was limited under section 3 (1)  of the said Act. The award as reported would have required, if adopted as judgment of the court, the cancellation of the late Kalisto title to the suit land which was registered so as to subdivide  and transfer three hectares to the Plaintiff.  In my  considered view, the  award would appear to have been beyond  the powers of the tribunal. The Court of Appeal  in case of Jotham Amunavi –vs- The Chairman Sabatia  Division Land Disputes Tribunal & Another C.A. No. 266 of 2002 held that  if the implementation of the decision of the tribunal entails  the subdivision of the suit land into two parcels opening  a register  in respect of each subdivision and thereafter the transfer of the subdivision of half acre it is  clear  that the proceedings  before the tribunal related to both title to land and beneficial interest in the suit land and such a dispute is not  within the provisions of Section 3 (1)  of the Land Disputes Tribunal Act as such disputes can only be tried by the High court or Resident Magistrate’s courts in cases where the latter has jurisdiction. As in that decision, the reported decision by Amukura Land disputes Tribunal awarding Plaintiff 3 hectares out of the suit land was beyond the tribunal’s power. The award is not before this court for adoption nor is it subject  to appeal before these proceedings and the court will not say more on it.

5. That the Plaintiff’s pleadings are only based on the adverse possession.   This may be for reasons that the claim was  commenced though originating summons. After direction were taken  that the originating summons be taken as plaint and replying affidavit as defence, no party moved the court  to amend  their pleadings. Therefore  even though the evidence  tendered by the Plaintiff and  submissions by  his counsel seemed to suggest  that the late Kalisto Ojuang was registered with the suit land as trustee for the Plaintiff, the pleadings were not amended to provide the particulars of trust that would then be proved through the evidence that was to be  adduced. The court cannot consider to grant that which was not pleaded and the attempt by the Plaintiff to base his claim on any other ground  except adverse possession must fail.

6. That contrary to the Plaintiff’s claim that the Defendants filed the Succession Cause of their late husband, Kalisto Ojuang, the available  evidence   shows otherwise.  The copy of the judgment in Busia H.C. Succession Cause No. 20 of 2001 which he produced as Plaintiff’s exhibit 2, shows that he had participated in those proceedings through some application filed on 2nd April, 2001 seeking to enforce the award from Amukura Land Disputes Tribunal, but was not successful.  The Plaintiff also appear to have filed an application dated 16th June, 2003  to revoke  or annul the grant  but was  also not successful.  The judgment  in the said  Succession  was read  on 5th May, 2009 and there is no indication of any party preferring  an appeal or a review of the orders.

7. That having  found as above, the court finds that the Plaintiff has failed to establish his case against the Defendants on adverse possession and his claim is dismissed with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE

DATED AND DELIVERED ON 16th DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF; PRESENT IN PERSON PLAINTIFF

PRESENT IN PERSON  1ST DEFENDANT

PRESENT IN PERSON  2ND DEFENDANT

Mr. Otanga for Defendants  and M/S. Lunani for Areba for plaintiff.

JUDGE