James Ilale Ekisa v Tom Kedinyang Okundu & 6 others [2014] KEHC 3014 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 111 OF 2013. ( FORMERLY HCC. NO. 43 OF 2012)

JAMES  ILALE EKISA……………………………………PLAINTIFF

VERSUS

TOM  KEDINYANG OKUNDU & 6 OTHERS………….DEFENDANT

J U D G M E N T.

JAMES  ILALE  EKISA, hereinafter referred to as the Plaintiff, filed this case against  TOM  KEDINYANG OKUNDU, PAULO OKWANA ABUK, IGNATIUS OWIRE OMOSOHO, ISHA ALI MUKHABANI, JOYCE PAPAI AND ELIZABETH  MANGENI, hereinafter  referred to as 1st to 6th Defendant  respectively for;

Eviction order against  Defendants  and those claiming under them from land  parcel South Teso/Angoromo/713.

Permanent injunction  against Defendants  and those claiming under them from trespassing and or encroaching onto land parcel south Teso/Angoromo/713.

Costs  of this suit.

The plaint,  dated 28th May, 2013  was filed through M/S. Gabriel Fwaya  advocate, and in it the plaintiff avers to the following among others;

That he was appointed the administrator of the estate of Matayo Ironiti Ilate on 5th March, 2012 in Busia H.C. succession Cause No. 7 of 2012.

That  Matayos  Ironiti Ilale, the  deceased, was  the registered owner  of Land parcel South  Teso/Angoromo/713 until his death.

That he got registered with the said land on 16th March, 2012 after being  appointed  as the administrator  of the estate  of Matayos Ironiti Ilale.

That the 1st Defendant is entitled to land parcel South Teso/Angoromo/719 and 2nd Defendant  to South Teso/Angoromo/725.

That  4th to 6th Defendants have purchased portions of land parcel South Teso/Angoromo/719 from 1st Defendant.

That the Defendants have interfered and encroached into a portion of Land parcel South Teso/Angoromo/713 without authority and should be evicted and permanently injuncted.

Each of the Defendants were served with the court papers and the affidavit of service filed.  The 2nd Defendant entered appearance twice on 5th July, 2012 and 13th October, 2012 in person.  The   1st, 4th and 5th Defendant entered appearance through M/S. Manwari & co. Advocates through the memorandum of appearance dated 12th July, 2012.  The 6th Defendant  entered appearance  in person  on 13th July, 2012 through her memorandum  of appearance  dated 10th July, 2012.  The 1st Defendant again  entered  appearance through memo dated 10th July, 2012 and filed on 13th July, 2012.

The 3rd Defendant  did not enter appearance.  Also, none of the Defendants filed any defence. The Plaintiff  filed their request for judgment dated 15th August, 2012  against the 3rd Defendant  who had neither  entered appearance nor filed defence.  The  Plaintiff  also filed a consent order dated  10th July, 2012, entered between  himself, 1st , 2nd  and 6th Defendant to the effect that judgment  be entered against  the three Defendants as prayed in  the plaint with each party bearing his/her own costs.

The Plaintiff set the matter down for hearing on 12th March, 2013 and notified the Defendants. The 6th Defendants did not attend the court  on that day and the hearing  commenced as those present  were ready.  The court allowed the Defendants to cross-examine  the Plaintiff and  his witnesses on the appreciation that the case involved  interests and rights to land.

The Plaintiff testified as PW 1 and told the court that Matayos Ironiti Ilale was his father and the registered owner of South Teso/Angoromo/713 until his death.  PW 1 said he then filed Succession Cause No. 7 of 2012 and was appointed the administrator of his deceased father’s estate, following which he was registered with the land.  He added that, land parcel South Teso/Angoromo/713 neighbours parcel 719 which is registered in the names of Okudu Ekisa, who is the father of 1st Defendant and parcel 725 registered in the names of Yahana Ame who is father to the 2nd Defendant.  He produced copies of the grant, green card and certificate of official searches for parcels 713, certificate of official  searches  for parcels 719 and 725, plus survey plan for Angoromo registration section diagram number 13 of 28th May, 2012.

Plaintiff said  on 22nd April, 2012 he brought a surveyor  to confirm  the boundaries and acreage of  land parcel South Teso Angoromo/713 and the surveyor  prepared a report dated 15th May, 2012 showing the land was only 2. 12 hectares on the ground instead of 4. 6 hectares  on the documents due  to encroachment  by parcels 719 and 725. The report indicated the surveyor  needed a court order to confirm the ground acreage of the parcels 719 and 725.  The report  also showed  that land parcel 719 had been subdivided.

Plaintiff informed the court that the 3rd , 4th and 6th Defendants had bought portions of land parcel South Teso/Angoromo/719 from 1st Defendant  while the 5th Defendant  had bought a portion  of land from 3rd  Defendant from the portion he had bought from 1st Defendant.  He  added that the portions  1st  Defendant had sold to 3rd, 4th and 6th Defendant though meant to be from parcel 719 were placed on parcel 713 on the ground without his permission or consent.

The second witness was Titus  Ojuang, the County Surveyor,  who testified as PW 2 told the court of his finding when he visited land parcel South  Teso/Angoromo/713 on 13th May, 2013.  He  said though the official document showed  land  parcel South Teso/Angoromo/713  was 4. 6 hectares,  he found  it was only 2. 12 hectares on the ground due to the  encroachment  by parcels 719  and 725.  On  the court confirming  that the 1st and  2nd Defendant  were agreeable to the  witness confirming  the ground sizes or acreages  of parcels South Teso/Angoromo/719  and 725, PW 2  was stood down to be recalled after the exercise.  When  the hearing resumed  on 31st  March, 2014, PW 2 continued  with his testimony.  He  told the court that following  the court  order of  15th May, 2013, he visited  the suit lands on 12th June, 2013 in the company of the Land Registrar who testified as PW 3 and  prepared  a report  which  PW 3  produced as exhibit.  To the report is annexed  a sketch plan by PW 2  which  shows how Land parcel  South Teso/Angoromo/713  is occupied. The portion  marked ‘’A’’ is the only one used by Plaintiff and appears to be about half the size  of the parcel. The portions marked ‘’B C, D and E’’ are occupied  by persons  who bought  the portions allegedly from parcel South Teso/Angoromo/719 and 1st Defendant. The  portion  marked ‘’F’’ marks  the portion of Land parcel  South Teso/Angoromo/713 taken  by land parcel South Teso/Angoromo/725 by pushing the public road that  marks  the boundary between  the two parcels  to inside parcel 713.  Both  PW 2 and PW 3  told the court they  repositioned the boundaries  marking parcels South Teso/Angoromo/713, 719 and 725 to the correct  positions  after establishing  parcel 719  had encroached onto parcel 713 by 1. 33 hectares and parcel 725  had encroached onto parcel 713 by 1. 08 hectares. They also  repositioned the public road  to the correct position.

The Plaintiff then closed  his case and after confirming none of the Defendants  had filed any defence the court placed the case for judgment.

The court  has carefully  considered the testimonies offered by PW 1 to  PW 3 and the exhibits produced and find as follows;

That  land parcel  South Teso/Angoromo/713  was first registered  on 7th November, 1973 in the names of Matayo Ironti, who l take to be the father of the Plaintiff, and whose estate  was the subject matter of Busia H.C. Succession Cause No. 7 of 2012.

That the  Plaintiff was registered with the said land  as administrator of the estate on 16th March, 2012.

That land parcel  South Teso/Angoromo/713  was 4. 6.  hectares and neighbours  parcels  719  and 725  which are 2. 8.  hectares  and 2. 0  hectares respectively, among others.

That the measuring  exercise  carried out by PW 2 and PW 3  following  the court orders of  15th May, 2013 on 12th June, 2013  confirmed  that land parcel  South Teso/Angoromo/719, from  which  1st, 3rd, 4th ,5th and 6th  Defendant’s  claim  portions, had  encroached into parcel  South Teso/Angoromo/713 had by 1. 33 hectares. They also  established that land parcel South Teso/Angoromo/725  had  encroached  onto land parcel South Teso/Angoromo/713 by 1. 08 hectares

That  the boundaries  in respect  of land parcels south Teso/Angoromo/713, 719  and 725  have now been repositioned to the correct positions  reflecting the respective  acreages or sizes  of the three parcels.

That the  exercise  by PW 2  and PW 3  to reposition the boundaries  for the three parcels of land  clearly shows the 2nd Defendant, and his relatives who use land parcel South Teso/Angoromo/725, had  been using a portion of 1. 08 hectares belonging  to South Teso/Angoromo/713 without  permission or consent of the Plaintiff.  It also  shows that the 1st Defendant , who  claim ownership of South Teso/Angoromo/719, had  given out  portions of  the land currently used by 3rd to 6th  Defendants which were placed on a portion of 1. 33 hectares encroached  from parcel South Teso/Angoromo/713 instead of placing them  on the appropriate parcel and this was done without the consent of Plaintiff.

That  none of the Defendants  has a legally recognizable  or enforceable interest over  land parcel South Teso/Angoromo/713 and this may be the reason none filed a defence to  the Plaintiff’s  case.

That none  of the Defendants  has shown  the court that they  deserve to be  allowed to continue  occupying the portions  of South Teso/Angoromo/713 belonging  to the Plaintiff that  they currently occupy without his consent.

That  those of the Defendants  who occupy South Teso/Angoromo/713  including  3rd to 6th Defendants, have no right  to continue occupying the Plaintiff’s  land and should instead pursue their respective claims in accordance with the provisions of the applicable  law from the person who sold them the land.

Having found as above, it is  clear that the Plaintiff’s  case has  merit.  He has established  on a balance of probabilities  that  he is entitled to the prayers sort.  Had the consent of 10th July, 2012  between  Plaintiff on one part, and 1st, 2nd  and 6th Defendants  on the other part, been confirmed, the three Defendants  would have escaped the costs.  I therefore enter judgment for the Plaintiff against the Defendants in the following terms;

That the  Defendants  are hereby  ordered to vacate from the portions of land they occupy out of land parcel South Teso/Angoromo/713  and particularly marked as ‘’B, C, D E and F’’ in the  sketch  plan by the County Surveyor, attached to the County Land  Registrar’s report of 12th June, 2013 and forwarded to the Deputy Registrar through the letter, dated  3rd July, 2013 and produced as exhibit  8 within thirty  (30)  days from today.

That in  default of the Defendants vacating  from the said portions  of land parcel South Teso/Angoromo/713  as ordered in  (a)  above and giving  vacant  possession to the Plaintiff eviction orders  to issue without any further application.

That the Defendants will pay the Plaintiff the costs of this suit.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATEDAND DELIVERED IN OPEN COURT THIS 13th DAY OF MAY, 2014.

IN THE PRESENCE OF;

JUDGE.