Jacob Wekesa Bokoko Balongo v Olokio Adeya & Benard Enyonyi Adeya [2014] KEHC 299 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

HIGH COURT  CIVIL APPEAL NO. 63 OF 2010

JACOB WEKESA BOKOKO BALONGO.......................APPELLANT

VERSUS

1.  OLOKIO ADEYA

2. BENARD ENYONYI ADEYA.................................RESPONDENTS.

(Being  an appeal against the judgment  of Hon. E. H. Keago

SRM,inBusiaSRM. CC. No. 40 of 2010 of 7th  October, 2010)

J U D G M E N T

JACOB WEKESA  BOKOKO BALONGO,  hereinafter referred to as the Appellant, being dissatisfied  with the judgment in Busia, SRM.CC. No. 30 of 2010 by Hon. E.H. Keago,  filed this appeal against  OLOKIO ADEYA  and BENARD ENYONYI ADEYA, hereinafter  referred to a s 1st and 2nd Respondent. The Appellant  listed eight grounds  in the memorandum of appeal dated 2nd December, 2010 which  are set out below;

‘’   1.  The learned trial Magistrate erred in law and in fact in framing of decision in the issue of adverse possess when the said issue was neither pleaded nor canvassed before him  for termination  between the parties.

2.  The learned trial Magistrate erred in law and in fact in failing to uphold the sanctity of the Plaintiff’s  title to the suit parcel and in failing to grant the prayers sought  by the Appellant/Plaintiff.

3. The learned trial Magistrate erred in law and in fact in misapplying the law  on limitation of actions to the available evidence, to wit that the Respondents  had not acquired  Title by adverse possession by reason of interrupted occupation.

4. THAT, the resultant finding of learned trial  Magistrate that the appellant’s  title was obtained irregularly is ambiguous, vague and unenforceable in the absence of further order.

5. THE judgment was delivered against the weight  of the evidence.

6. THE  learned trial Magistrate  erred in law and in fact in allowing the witness who have been attending the hearing of this case since 19th March, 2010 in court No. 3. 29th April, 2010 in court No. 2. 3rd June, 2010 in court No. 2 chamber.

7.  THE learned trial Magistrate erred in law and in fact allowing their evidence  on 22nd July, 2010 and knowing that the law of   this land was not followed.

8.  THE learned trial Magistrate erred in law and in fact by refusing my Application requesting  Honourable court to order District Land Registrar to come and certify/confirm  document tabled before Honourable court as evidence.’’

The Appellant then filed the record of appeal and appointed counsel who filed their notice of appointment on 5th July, 2011. The counsel  also filed  a supplementary record  of appeal dated 5th July, 2011.

When the appeal came up for hearing on 19th, June, 2014, the Respondents indicated that they had not been served with the record of appeal. The court directed that service be effected and adjourned the hearing to 28th July, 2014, when the parties made their submissions.

In his submission, Mr. Musumba for the Appellant consolidated the eight grounds into three and his submissions are summarized as follows;-

1. That the Appellant had followed the due process in purchasing  and being registered as proprietor of Bukhayo/Kisoko/2281. That the Appellant title is indefeasible and cannot be challenged under sections 27 and 28  of Registered Land Act Cap 300 of Laws of Kenya (Repealed) which provisions are in similar terms to sections 25 and 26 of the Land Registration Act.  He cited the Court of Appeal decision in Wamukota –vs- Donati (1987)KLR 280 to support his submission.

2. That the finding of the trial court that Appellant title was obtained through fraud was not based on available evidence.  That Respondents  had not proved fraud attributed to the Appellant.  The level of proof required is beyond the balance of probabilities.

3. That the  suit was not statue barred contrary to the Lower court finding.  Counsel submitted that the evidence adduced showed encroachment  commenced in 1999 and by 2010 when the suit was filed, only a period of eleven years had  passed.  The Lower court had got it wrong when it found a period of over twelve years had passed. The appellant’s  counsel  in response to the Respondents’  filed submissions, pointed out that the Appellant had obtained leave to file the appeal out of time and filed it in five days after obtaining the order. The 1st and 2nd  Respondents  adopted the contents of their filed documents dated 28th July, 2014 and 3rd July, 2014 respectively.

This being a first appeal, the court has the duty to re-evaluate the evidence, assess it afresh and draw its own conclusions.  In doing so, this court should bear in mind that it did not have the advantage to see the parties and their witnesses testify and should give an allowance for that.  The guiding parameters have been aptly captured in Peters –vs- Sunday Ports  Limited (1958) E.A, 424 at page  429 and Malcom Bell –vs- Daniel  Torotich Arap Moi & Another (2012) eKLR among others.

The Appellant had commenced Busia SRM. CC. No. 40 of 2010, through  the plaint dated 29th January, 2010 that  was consequently  replaced by the amended plaint dated 19th March, 2010. The Appellant main prayers against Respondents were  that they pay him general damages for trespassing into Bukhayo/Kisoko/2281 and be evicted from therefrom.  He had averred that he had bought the land in 1980 from the Respondents’  brother named Patrick Kwoba Adeya.

During the hearing in the Lower court, The appellant testified  as PW 1.  He told the court that he bought land from Patrick Kwoba Adeya in 1980 and that in January, 1981, they appeared before the Land Control Board and obtained the consent. He took the consent to the District Land Registrar and it was found to be defective as it was indicated to be for sub division. The Appellant said he returned the consent  for corrections after which he took it back to the lands office.  He made the requisite  fee payments for parcel Bukhayo/Kisoko/358 and the property was subdivided into three parcels being numbers 2279, 2280 and 2281. He then had land parcel Bukhayo/Kisoko/2281 registered in his names but the Respondents  have declined to vacate from the land.  Appellant confirmed that when Patrick Kwoba  Adeya sold him the land, the parcel was registered in the joint names of Respondents and the seller. That the seller’s  (Patrick Kwoba Adeya’s ) share was four (4)  acres and that he had sold to him the entire share now measuring 3 ½ acres. He  said he had taken possession of ½  of the land he bought.

The 1st Respondent and 2nd  Respondent  had testified as DW 1 and DW 2 respectively. They also called Jacob Wekesa  Balongo and Patrick Kwoba who testified as DW 2 and SW 3 respectively. The Respondents defence was that they never entered into any land sale agreement  with Appellant over Bukhayo/Kisoko/2281, or any other parcel and do not know how Appellant got registered with that land. The Respondents stated that  the parcels Bukhayo/Kisoko/2279 to 2281 came  from Bukhayo/Kisok/358 which belonged to their father, Adeya Omaita who died in 1977. That Adeya Omaita subdivided the land before he  died and left 1st Respondent  and  2nd Respondent  on parcels 2281 and 2279 respectively.  That Adeya Omaita had sold parcel 2280 to one Alusara by the time he died. The 2nd Respondent  conceded knowing that plaintiff had bought ½ acre  on 19. 11. 2980 and paid Kshs.1,900/=

DW 2 evidence  was that he resides on Bukhayo/Kisoko/2280 which was bought by one James Alusara from Respondents father. The parcel  had been subdivided  from Bukhayo/Kisoko/358. He said  parcel 2279  was given  to 2nd Respondent  while parcel 2281 was given to 1st Respondent and DW 4  (Patrick  Kwoba  Adeya ).  He added that the Respondents father had planted a boundary to  mark the portion of 1st  Respondent from that of DW 4.

DW 4 denied selling land to the Plaintiff saying that Plaintiff had given him Kshs.1900/= in 1991 to use when looking for employment. He denied selling plaintiff ½ acre of land.

The Plaintiff had produced 12 documents  as exhibits.  Among  them  are the following;-

a. Copies of certificate of official search for Bukhayo/Kisoko/358 dated 1st September, 1999 and 13th April, 1999 showing the land  was 4. 2 hectares and had been registered in the joint names of Enyonyi Adea, Kuoba Adea, Olokio Adea on 21st  May, 1971 and each owing 1/3 share. The certificate also shows that the title was closed on 23rd October, 1991 upon the land being subdivided to parcels 2279 to 2281.

b. Copies of certificates of official search for Bukhayo/Kisoko/2279 registered on 23rd  October, 1991 dated 16th March, 2010  and 13th April, 1999 showing the proprietors as Oloike Adea and Bernard Enyonyi Adea. The copy dated 16th March, 2010 shows the acreage as 1. 6 hectares while that dated 13th April, 1999 indicates the approximate acreage as  ‘’nil.’’

c. Copy of title deed for Bukhayo/Kisoko/2279 issued on 19th November, 1992 in the names of Bernard Enyonyi Adea.  The copy  does not indicate  the size of the land at  the space provided at page 1 and 2  of the document.

d. Copy of letter of consent number 347986 dated 20th January, 1981. It indicates it was a consent to transfer land from Patrick Kwoba Adeya to Jacob W.  B. Balongo.  It describes  the land as Bukhayo/Kisoko/1412 at  the heading just above the words ‘’LETTER OF CONSENT’’ and  at paragraph 2 (a)  the numbers  ‘’1412’’ are  cancelled and above them the numbers ‘’2281’’ added.

e. The copy of the mutation form for Bukhayo/Kisoko/358  registered on 12th March, 1990 creating parcels 2279, 2280 and 2281  measuring 1. 6, 1. 52 and 1. 08 hectares respectively.

f. Copy of  certificate of official search for Bukhayo/Kisoko/2281 dated 10th March, 2010  and showing that it was 1. 08 hectares and was registered on 16th December, 1993 in the names of Jacob W. Bokoko Balongo.

g. Copy of title deed  for Bukhayo/Kisoko/2281  issued on 16th December, 1993 carrying similar details as the copy of official search mentioned in paragraph  (f) above.

h. Copy of the register for Bukhayo/Kisoko/2281  issued on 13th April, 1999 that contains  the history of the land from 23rd October, 1991 to 16th December, 1993.

I have considered the evidence before the lower court and the contents of the documentary evidence presented and find the following:-

1. That though the Appellant case is that he bought the whole share of Patrick Kwoba Adeya’s land in 1980 , there was no written sale agreement produced before the trial court.  It is therefore not possible to confirm the terms of the agreement including  the acreage of the portion being sold, the purchase price, the vendor and purchaser  and their witnesses if any.  The Law of Contract Act, Chapter 23 Laws of Kenya, at  section 3 (3) states;

‘’  (3)  No suit shall be brought  upon a contract for the disposition of an interest in land unless-

a.the contract upon  which the suit is founded-

i.is  in writing;

ii.is signed  by all the parties  thereto; and

b.the signature of each party singing  has been attested by a witness who is present when  the contract was signed by such party;

Provided that…………’’

The person the Appellant  named as the vendor is Patrick Kwoba  Adeya  who is a brother to the Respondents  and who testified as DW 4.  He denied  having sold any land to the Appellant saying he had only borrowed Kshs.1900/= from him in 1991.

2. The copy of  the mutation form for Bukhayo/Kisoko/358  shows parcels Bukhayo/Kisoko/2279 to 2281 were created following the subdivision registered   on 12th March, 1990. This clearly show the three parcels , especially Bukhayo/Kisoko/2281 which is the subject matter of the proceedings before the Lower court and this appeal did not  exist before the date of  the subdivision of parcel 358. The copies  of the register and official search for the parcel  Bukahyo/Kisoko/2281  shows the register  was opened  on 23rd October, 1991.  It was therefore not in existence in 1980 when the Appellant (Plaintiff) alleged  that he bought  it from DW 4.

3. That having  found as in (2)  above,  the copy of letter of consent to transfer dated 20th  January, 1981  and produced by Appellant during the hearing in the Lower court cannot be  the consent that enabled the Appellant to get  registered  with the suit land on 16th December, 1993. The suit land did not exist when the letter of consent was issued. It is therefore not surprising that the letter of consent bears cancellation at paragraph 2(a) as it  cannot  be  anything  else but a forgery.

4. That if indeed there was a land sale agreement between Appellant and Patrick Kwoba Adeya of 1980, then the letter of consent would have been made within six (6) months to the relevant Land  Control Board. This is in accordance with section 8 (1)  of the Land Control Act Chapter 302  of Laws of Kenya which  state;

‘’   8(1)An  application for  consent in respect of a controlled transactions shall be  made…..within six   months of the making of agreement……….’’

That even  though  these proceedings do not involve the alleged  vendor, Patrick Kwoba  Adeya as a party, the fact that  the Respondents  called him as a defence witness  speaks volumes. The evidence Patrick Kwoba Adeya  gave casts   doubts as to whether there was any agreement between him and the Appellant. The evidence  only goes to suggest that the monies Patrick Kwoba Adeya received from Appellant in 1991, and not  1980, was either  a loan  or purchase price for a half acre (1/2) of land.  The money  could not have been the purchase  price  of Bukhayo/Kisoko/2281.

5. That the Appellant would  need to first establish the authencity of the process and transaction through  which he acquired registration as proprietor of Bukhayo/Kisoko/2281 before  he can successfully sue for the prayers sought. This  is because;

a. DW 4 has  disowned having entered into any land sale agreement with Appellant  in 1980 or any  other time.

b. The Respondents and DW 4 have disputed signing  any documents  to transfer  land parcel Bukhayo/Kisoko/2281 to the Appellant.

6. That the  Appellant’s  claim if any, should  be against  Patrick Kwoba  Adeya  with whom  he allegedly entered into a land sale agreement. The said vendor would possibly show him the portion he sold in 1980 and assist him get vacant possession.

7. That 1st Respondent has been in occupation of that portion of Bukhayo/Kisoko/358 that after subdivision became Bukhayo/Kisoko/2281, even before the sale agreement in 1980.  He  had therefore been  on that land for a period  exceeding 12 years from the date Appellant got  registered as proprietor  to the date of filing  the suit.

8. That the 2nd Respondent has been occupying that portion of Bukhayo/Kisoko/358 which after subdivision became Bukhayo/Kisoko/2279 and not Bukhayo/Kisoko/2281.  The Appellant had no basis of suing him in this case.

After setting  out the analysis  of the evidence tendered before the Lower court as above, I now  turn to the judgment of the learned trial Magistrate to see whether this court would  deviate from the findings  therein.  The learned trial Magistrate, after setting out the five issues for determination, had proceeded to make the following findings:

‘’ The Plaintiff in this case sued the Defendants whom he says  occupy his land which  he bought.  From the evidence tendered before court, it is clear that the 2nd Defendant  has his separate land Bukhayo/Kisoko/2279 which he occupies….there is no clear claim between  the Plaintiff  and the 2nd Defendant.  He did not sell (him)  2281 nor does he stay on the (suit)  property.  I find that he (2nd Defendant ) has been improperly sued and the suit against him is hereby dismissed with costs.’’

This court concurs with the finding of the learned trial Magistrate on this finding.

The learned trial Magistrate then addressed whether the suit was filed within the time set by the law.  He found that 1st  Respondent has been in occupation of the  suit land even by the time the Plaintiff claimed to have bought it from Patrick Kwoba Adeya. The learned trial Magistrate  held;-

‘’ ….The Plaintiff acquired title on 16th December, 1993. As at that time (to)  the present  (the) 1st Defendant was in occupation. This case was filed in court on 29th January, 2010.  By (From) that time it was about 18 years to date.  A claim over land can only be lodged within a period  of 12 years.  12 years would have expired  sometimes in 2004.  Hence  this suit was brought  after    6 years  late.  There was no leave obtained before the claim could be lodged (and) hence it cannot stand in law.’’

The learned trial Magistrate went on to cite section 7 of the Limitation of Actions Act Chapter 22  of Laws of Kenya, which provides the period  of 12 years  limit for claims to recover land from the date the right  accrued.  The date the Plaintiff  right  to the land  he bought from DW 4 accrued, was  taken by the Learned trial Magistrate to be  the date he got registered  with  the suit land, that  is 16th December, 1993. The date could have been earlier as he had stated the sale agreement was in 1980 and that the Land Control Board consent was obtained  in 1981. This court  cannot fault the finding of the learned trial Magistrate that indeed the Plaintiff filed the claim outside the 12 years  window. He had also not  applied for and obtained an extension of time as required under the law.

The learned trial Magistrate also looked at the adequacy of the evidence adduced  by the Plaintiff to proof his claim and made the following finding:

‘’………..There  was no agreement  produced to show that indeed  Patrick Kwoba sold any land.  If he  sold land, the plaintiff was  supposed to be shown the 1/3  by Patrick Kwoba and none other…… I find that the Plaintiff’s claim  against  Olokio  Adeya not to be based on actual evidence  but hinges  on fraud  by the plaintiff and others. The title  in the custody of the Plaintiff  is not clear on how it was obtained. The original title deed Kisoko/Bukhayo/358 (Bukhayo/Kisoko/358) was jointly and severally owned by the parties mentioned supra.  For  the Plaintiff to obtain  title  deed as alleged, it was only after Patrick    Kwoba  had (first)  obtained  his number that he could intentionally transfer to him (Plaintiff) what  he had sold to him….’’

The learned trial Magistrate went on to make a finding that the Plaintiff’s ‘’title was obtained irregularly.’’  He also found that the title was not a first registration and hence not protected under sections 27 and 28 of the Registration of Land Act, Chapter 300 of Laws of Kenya (now repealed) and dismissed the Plaintiff’s suit against the 1st Defendant as well.

This court has considered the totality of the evidence adduced before the Lower court and the findings of the learned trial Magistrate contained in the judgment  subject  matter  of this appeal. The court has also considered the grounds of appeal as set out in the memorandum and the submissions by the parties and make the following findings;

1. That  the learned trial Magistrate was in order when he made a finding that the Plaintiff’s  suit was filed out of time. The Respondents filed statements of defence had clearly indicated that the 1st Respondent had been in occupation of the land forover 12 years. This was therefore an issue for determination and the learned trial Magistrate properly pronounced himself on the matter. The Respondents had not lodged a counterclaim over the land based on adverse possession principle and the court  did not make a find on that.

2. That the sanctity of a title on first registration has been held to be so sacrosanct that it could not be vitiated even in the face of fraud.  See Chacha –vs- Manini (2002) 2KLR 83, Obiero –vs- Opiyo  & others (1972) E.A. 227,Esiroyo –vs- Esivoyo & Another [1973] E.A. 338, Ambant –vs- Masolia [1986] KLR 24.   In this case, the Appellant’s title to Bukhayo/Kisoko/2281 is not a first registration as it was created from the subdivision of Bukhayo/Kisoko/358. The Appellant’s title was also not  procedurally and regularly  obtained and hence not protected as fraud  was established by the following factors:

a. No land sale agreement between Plaintiff and DW 4 who denied existence of such an agreement, was produced.

b. Considering that the suit land Bukhayo/Kisoko/2281 came into  being after the subdivision of Bukhayo/Kisoko/358, the letter of consent to transfer  produced  by Plaintiff and dated 20th January, 1981  was nothing but a forgery.

c. That the Respondents and DW 4 disowned the transaction, it was upon the Appellant to proof how  he acquired  registration  of Bukhayo/Kisoko/2281 and as found by the learned trial Magistrate, has  failed to do so.

The court having found as above, finds no merit in the appeal and the same is dismissed with costs to the Respondents.

S. M. KIBUNJA.

JUDGE.

DATED AND DELIVERED ON 6TH DAY OF OCTOBER, 2014.

IN THE PRESENCE OF’ Appellant, 2nd Respondent and Mr. Jumba for Murumba advocate for the Appellant.

JUDGE