JAVAN ENGOKE MUSIEGA v NYONGESA SIFAGIO [2013] KEHC 3519 (KLR)

REPUBLIC OF KENYA

High Court at Bungoma

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JAVAN ENGOKE MUSIEGA

[suing thro’ Nicholas Angutsa Engoke……………………….…….. PLAINTIFF

VERSUS

NYONGESA SIFAGIO…………. .……………………………….. DEFENDANT

JUDGEMENT

The plaintiff filed a claim by way of an originating summons for orders;

a).The plaintiff’s claim to title by adverse possession over land parcel No. E. Bukusu/S. Kanduyi/1975 is merited and be granted.

b).The registration of Nyongesa Sifagio as the proprietor of land parcel No. E. Bukusu/S. Kanduyi/1975 be cancelled and the register be altered in favor of the plaintiff Javan Engoke Musiega.

c).The title deed for land parcel No. E. Bukusu/S. Kanduyi/1975 be issued to the plaintiff.

d).Costs do abide the outcome.

The O.S was supported by affidavit. The  defendant  did not enter  appearance.  He

was served through an advertisement  placed in the Star Newspaper  of   Thursday

November 29th, 2012. The matter proceeded to hearing on 26th February 2013.

PW1 Nicholas Angutsa Engoke testified  on  behalf of the plaintiff. He  informed

the court that he is son to the plaintiff. The plaintiff is  old and  ailing and     has

turned blind due to ill health.

His evidence to court is that the plaintiff purchased I acre portion of land from the

defendant in 1970’s. The original parcel  from  which  the  1 acre was  curved  out

from was E. Bukusu/S. Kanduyi/1443. His  father was issued with a title deed  on

16th March 1976 and he produced the original title deed as plaintiff exhibit 1. The

plaintiff avers that the whole land measuring 2. 03 ha was erroneously transferred

to him. He produced sale agreement as exh. P.2 to show  the  plaintiff actually and

lawfully claim 1 acre only. The plaintiff states that he had developed  this portion

with a house on it and has had it occupied for the past 44 years.

The original title no. E. Bukusu/S. Kanduyi/1443 was closed on  sub-division  on

28th February 2011. It produced parcel nos. 1974, 1975 – 2088. The  green   card

was produced as Plaintiff exh. 3 Except for parcel No. E. Bukusu/S. Kanduyi/1975

which is in the defendant’s name. The other parcels are in other people’s names.

When the plaintiff discovered the  sub-division  was  undertaken, he  lodged  a

complaint with the chief to also be able to get his title  for the portion he occupies

and  which he  purchased  which  according  to  the  plaintiff  is  now  E. Bukusu/S.

Kanduyi/1975.

This  evidence  has  not  been  challenged. The  plaintiff’s  witness  gave  a good

Chronology  of   events  in  support of their claim which this court finds believable.

The evidence is further corroborated with documents  produced during the hearing.

I have perused them   and  I  am  satisfied that the plaintiff has proved his case on

a balance of  probabilities.  It   can  be  conclusively   held   that    the

defendant  retained title No. E. Bukusu/S. Kanduyi/1975 in his names in trust for

the   plaintiff. The sub-divided titles all  have been   registered into  other names

other   than  the defendant’s name. I therefore grant the prayers as set out  in the

O.S.  Costs are not awarded against the defendant as he did not enter appearance.

JUDGMENT DATED, SIGNED, READ and DELIVERED in open court this 26th   day of March 2013.

A.OMOLLO

JUDGE.

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