James Wesonga Nafwa v County Land Registrar & another [2015] KEHC 6550 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. MISC. APPLICATION NO.125  OF 2014.

JAMES  WESONGA NAFWA …………………………….APPLICANT

VERSUS

COUNTY  LAND REGISTRAR…………………………….RESPONDENT

AND

FESTUS  WERE MUNGAYO……………………….INTERESTED PARTY.

R U L I N G.

JAMES WESONGA NAFWA,through  M/S. Balongo & co. advocates, filed  the notice of motion  dated 14th October, 2014 against  the County Land Registrar for the following order;

‘’ (a)  That  a notice to show  cause why he has declined to register James Wesonga  Nafwa as the proprietor of all that parcel of land  comprising  L.R.  Marachi/Elukhari/948. ’’

The application is based on five grounds on the face of the application and  Applicant’s supporting affidavit sworn on 14th October, 2014.  The application names  Festus Were Mungayo as an Interested Party and he filed a replying affidavit sworn on 7th November, 2014 opposing the application.

I have considered the grounds  on the application, submission by counsel and Interested Party,  supporting and replying affidavits  and  find as follows;

That there  has been several cases over the suit land in various   forums culminating  in Kakamega H.C.C.C. No. 146 of 1989 in which Fanuel  Nafwa Muyubi was the Plaintiff,  and Festus  Were  the Defendant.  In the judgment  delivered  by the  court on 13th December, 1996, Tanui J, found as follows;

‘’On the balance  of probabilities , I am  satisfied that the    appeal case No. 44 of 1966 filed  at the arbitration board, Busia is not heard and finalized. The question  of the  Defendant being  first registered proprietor  of the suit   property does not arise as that registration was obtained by fraud.   As  to the suit being barred by statute of Limitation of Actions Act, this  also does not arise.  In  any  case the Defendant  admitted that he does not  live on the suit land and there was no counterclaim to the Plaintiff     prayers.

It is  therefore ordered that the registration of the  Defendant  as  the sole proprietor of  the  parcel of land   title No. Marachi/Elukhari/948 be cancelled. The Provincial   Commissioner Western Province  to constitute  an arbitration board for Busia District to hear and finalize  the arbitration  case No. 44 of 1966. The Plaintiff to have    the costs of this case.’’

It is important  to note that the  court did not issue an order that  the Plaintiff  be registered as the proprietor  of the suit  land.  The  issue of ownership was to be determined through the hearing and      finalization of arbitration case No. 44 of 1966.

That the  Applicant  has not availed any court order  directing that he be registered  as the proprietor  of the suit land.  Even if  the Applicant had such an order, the  forum to move  the court in execution  and compliance would be in the case where the order was issued and not the current miscellaneous application.

That the Interested Party’s  contention  that the arbitration award in case No. 44 of 1966  was heard and award made in his favour has not been rebutted. He  further indicated that the award was filed and adopted  in Kakamega CM. Misc. No. 116 of 1998 which has also not been disputed.  The Interested Party exhibited  a copy of eviction  order against James Nafwa Muyubi issued  in Kakamega CM. Misc. No.116 of 1998  on the 20th February, 2003.  There are no  evidence of appeal being preferred against the decision in arbitration case No. 44 of 1966, Kakamega  CM. Misc. No. 116 of 1998 and Kakamega H.C.C. No.146 of 1989.

That from the foregoing, the court finds no merit in the application and  the same is dismissed  with costs to the Interested Party.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON…26TH …….DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF; ABSENT ……… APPLICANT

… ABSENT ............ RESPONDENT

PRESENT ………INTERESTED PARTY.

JUDGE.