John Mwau Mwongela, Joseph Kimeu Mwongela & Miriam Mumbua (Suing as the administrators of the estate of Philip Mwongela Kithuka) v Daniel M. Ndivo [2018] KEELC 3434 (KLR) | Land Adjudication | Esheria

John Mwau Mwongela, Joseph Kimeu Mwongela & Miriam Mumbua (Suing as the administrators of the estate of Philip Mwongela Kithuka) v Daniel M. Ndivo [2018] KEELC 3434 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND  LAND COURT AT  MAKUENI

ELC 41 OF 2017

JOHN MWAU MWONGELA --------------------------------------  1ST PLAINTIFF

JOSEPH KIMEU  MWONGELA --------------------------------- 2ND  PLAINTIFF

MIRIAM MUMBUA (Suing as the administrators of the estate

Of Philip Mwongela Kithuka) ----------------------------------- 3RD PLAINTIFF

Versus

DANIEL M. NDIVO -----------------------------------------------------DEFENDANT

JUDGMENT

1) By their plaint dated 14th April, 2014 and filed in court on even date the plaintiffs pray for judgment  against  the defendant for:-

1. A declaratory order to the effect that the decision by Land Adjudication/Settlement officer made on 27th October, 2010 altering the boundary of Plot Number 3010 and the unadjudicated Plot owned by the 1st plaintiff was illegal null and void for want of  jurisdiction.

2. An order directing  the Land Adjudication officer to rectify  the adjudication register in line  with the order of the Court made in Civil  Case No.  L. 14 of 1978.

3. An order directing  the Land  Register to revoke  title documents issued  to the defendant his servants, agents and assignees in respect of Plot Number  4876.

4. An order of permanent injunction restraining the defendant, his servants, agents from encroaching, carrying out, selling occupying, transferring, leasing  or in any manner interfering with the  Plaintiffs quiet ownership and ownership and possession of Plot NO.  3010.

5. Costs  of the suit.

2) The   claim is denied by the defendant in his statement of defence dated 13th May, 2014 and filed in court on even  date.

3) When the matter came up for hearing on the 13th July, 2017 the first plaintiff adopted his statement which he recorded on the 14th April, 2014 on his own behalf and that of his brother and sister as his evidence. He said   that  he and his co-plaintiffs are joint administrators of   the estate  of Philip Mwongela Kithuka who was their father  pursuant to the grant of letters  of administration intestate   issued in Nairobi  High  Court Succession Cause number 2864 of 2006 (PEx no.5). The first  plaintiff went on to say that  he was aware that his late father was the proprietor of land parcel number 3030 Kalongo  adjudication area and that the  process   leading  to issuance of   titles was  on ongoing  pursuant to the adjudication that had taken place.

4) That in 1978 there was a boundary dispute in  Kilungu  District Magistrate’s Court in Civil Case number L 14 of 1978 between his  late father and  Mbunu Masyuko (deceased),  Mwise  Masyuko and  Daniel Waema. He pointed  out that the dispute  involved a boundary and judgement was  entered in favour of his late father(Pex no. 1) and that  the said judgement has never been challenged or set aside.  He went on to say that prior to the court’s decision, the clan elders had on or about 22nd August, 1976 adjudicated on a boundary dispute involving the said property and many other adjacent properties whereupon it  made a decision clearly demarcating the boundaries of the properties in question. That in or about the year 2010, he received summons from the Land Adjudication/Settlement  Officer requiring him to appear  before   the Kalongo  Land Office to answer  to a claim of P/No 3030 (PEX No. 6). He went on to say that  Daniel Mutiso Ndivo was said  to be the  complainant.  The plaintiff said that he  honoured the summons and appeared on the  27th  October, 2010 where he learnt  that the defendant herein   had objected to the adjudication register and further  claimed that he had bought  some  land from one Kathuko Nyamai.  The plaintiff  went on to say  that  the  defendant claimed  that he (plaintiff) had encroached on the land that the defendant   had bought.  The plaintiff   said   he informed   the  Land Adjudication Officer that the issue of the boundaries had  been settled by the court in the aforementioned  L 14 of 1978, an issue the officer ignored in his decision of 17th November, 2010. The plaintiff pointed out that the Land Adjudication Officer allowed the objection by the defendant and directed that a portion of land be extracted from plot number 3030 and  awarded it to the defendant.

5) The  plaintiff went on to say that being aggrieved by the decision of the Land Adjudication  Officer he sought  consent   of District Land Adjudication and Settlement Officer to file a suit which the  latter granted vide a letter dated 18th January, 2012 (PEx no. 4)

6) The plaintiff  said  that the defendant  had the plot  which he claimed  to be 4876 adjudicated on the strength of the decision by the Land Adjudication/Settlement Officer.  According to the plaintiff, plot number 4876 comprised of plot  number 3030 as well as a portion that he had bought from one David Kimonyi Mwisa. The plaintiff went on to say that    plot number 4876 was created  illegally since the proceedings and  the decision of the Land Adjudication Officer were illegal, null and void for overriding  the decision of the court.

7) His evidence in cross-examination by Mr. Kamanda for the defendant was that he relies on case number 14 of 1978. He said that the proceedings in the said case  do  not refer to the suit land but  it mentions its boundary. He also said  that the proceedings do not  refer to plot number  3030.  The plaintiff went on to say that he and the defendant presented their evidence before the Land Adjudication Officer.  He said that he could not appeal as he decided  to and  wait see the portion of land that was to be extracted following the decision  of Joel Nzuleo who made his ruling in his capacity  as a government officer.  He said that  when he went to see the  Lands Officer when the implementation of the award began, the latter advised him  that he ought to have appealed  to the minister   within 60 days.  He said that the boundary was altered by the Lands Officer.

8) The first plaintiff’s evidence in re-examination was that L no. 14/78 involved confirmation of his father’s land. The plaintiff said that plot number 4876 was partly in 3030 as at 1978.

9) Pius Kyalo  Wambua  (PW1) told the court that he is the district secretary of Aiini clan.  Like the first plaintiff, Wambua (PW1) adopted his undated statement filed in court on 25th October, 2016 as his evidence. He said that on 7th October, 2011  the Aiini Clan elders had a sitting at  locational  level  upon the request of the plaintiff herein who had a boundary   dispute with one Katuko Nyamai  and Mutiso Ndivo. He said that during the clan’s sitting, it was established that in 1976 clan elders had put  boundaries in the area.  He pointed out that they also found out that it was not clear how plot number 4876 was established in the year 2011 since plot number 3030 was the last in Kalongo.

10) Wambua’s  (PW1) evidence in cross-examination was that the  clan elders were surprised that the survey had created plot number 4876 which they were  not aware  of.

11) Henry Kamoso Muisa’s (PW2) evidence in chief was that the plaintiffs are his neighbours. He went on to say that in 1976, his father was involved in a land dispute with Wandia Kole over Kyangatho area. He  said that the clan led by  Hhe its chairman went and demarcated the boundary between his father and Wandia  and Muthembwa  Kioko and the two  were allocated a piece of land in ancestral area while  Muisia Masyuko and  Mbunu Masyuko were  allocated land in the grazing  field.

12) Mwisa’s ( PW2) evidence  in cross-examination was that the dispute  which  his father and Wandia  concerned   the latter moving  to the  grazing field.

13) He said that boundaries were fixed and that the survey  department found the same  boundaries that were fixed by the clan when it visited  the area in 1990.  He  added that the survey department  visited the area again in 2010.  He said that the court visited the area in 1978 where it confirmed the  boundaries of Muisia   Masyuko, Mbuno Masyuko, Wandia Kole and Philip Mwongela.  He said that Daniel Waema was not a party to the dispute of 1978.

14) On the other hand, the defendant’s  case was that he is the owner of plot number 4876 which  he purchased from Kathuku Nyamai  who is  his neighbour. He said that when  the area was adjudicated upon,  the same  was done within plot number 3030 forcing  him  to file an objection which was allowed on 17th November, 2010.  He produced the objection proceedings and ruling as DEx. No. 1 and added    that the ruling has not been appealed against.

15) The defendant’s evidence in cross-examination was that although he purchased  the land  from Katuko Nyamai, he  did not have the agreement that he and Katuko  entered   into.  He said that he was not aware that  he was required by the law to reduce the agreement in question  in writing. It was his evidence that  he wasn’t aware of  any boundary dispute between  the plaintiffs’  father and Wandia Kole. He denied having encroached into an adjudicated land in Ndiani adjudication site. He  also denied having forced a portion of land that had not been adjudicated upon to be merged  with Kalongo so as to create plot  number 4876.

16) The plaintiffs’ and the defendant’s  counsel on record filed their submissions on the 20th December, 2017 and 25th January, 2018  respectively.

17) Mr.  Mwema’s submissions were that the decision by the Adjudication Officer reeks of illegality, impunity and ought to be declared null and void ab initio.  The counsel further submitted that the court has jurisdication  to overturn an illegal decision and to restore dignity to orders made by courts and local tribunals.  The counsel cited  section 7(ii) of the Environment and Land Court Act.  He also referred the court  to the Court of Appeal decision  whose correct citation he did not quote.  I shall thus pay no attention to the said authority as it was annexed to the submissions that the counsel filed.

18) Lastly the counsel submitted  that the  defendant’s agreement is in breach of section 3(3) of the Law of Contract Act Chapter 23 of the laws of  Kenya.

19) The submissions by Mr. Kamanda for the defendant   were that the plaintiffs’ suit is bad in law  and should  therefore be dismissed with costs to the defendant.

20) Having read the evidence on record as well as the submissions that were filed,  I wish to state  that  whereas I agree with the plaintiffs’ counsel that this court has the power to issue declaratory orders, section 7 of the Environment and Land Court Act  no.  19 of 2011 referred to by the plaintiff’s counsel relates to qualification and appointment of judges of the Environment and Land Court. I assume  the counsel  had section 13(7) (h) of the Act in mind as it deals with the reliefs that the court can make.  I need not  emphasize the fact that this court has  jurisdiction to hear and determine  all disputes in accordance with Article  162 (2) (b) of the Constitution and with the provisions of the Environment and Land Court Act or any other law written law relating to the “environment and land”.  However the issue of jurisdiction  was not in contestation in this  case.

21) From the evidence  on record, the plaintiff says that the boundary to his plot number  3030 was set by the District Magistrates Court Kilungu in Civil Case Number  L 14 of 1978. He further says that the District Court confirmed the boundary that was set by the clan elders  in 1976.

22) The first plaintiff did admit that L 14 of 1978 does not refer to the  suit land. The proceedings and judgement in L14 of 1978 and  the  determination  of the  clan elders are amongst the evidence that the plaintiffs  presented  before the Land Adjudication/Settlement Officer on the 27th October, 2010. Having determined the objection by the  defendant in favour of the defendant    herein, the plaintiff  had the option of appealing  against the determination to the minister under  the provision of section 29 of the Land Adjudication Act, Chapter  284 of the Laws of Kenya. The  first plaintiff did not do so and  the explanation that he gave for his  failure to do so was that he waited to see the portion of land that was to be extracted. The explanation is not tenable.

23) It seems to me that the plaintiffs are trying to appeal against the determination of the Land Adjudication/Settlement Officer before this court when  they ought to have filed their  appeal before the minister.  I say so because the plaintiffs have  not enjoined  the Land Adjudication/Officer as a party to this suit and yet  they have  averred in paragraph 8 of their  plaint that the award by the  said  officer was illegal, null and void. The plaintiffs have not applied  for judicial review. It would be unfair and unjust to condemn the Land Adjudication Officer without giving him/her a hearing since it is his  decision  that the plaintiff seeks to  impugn. .

24) The  first plaintiff has not stated the acreage  that he was entitled to under the adjudication process.  He has not  even stated how big his land  was after the determination of the court in L 14 of 1978 . This is an issue that would have been settled during the adjudication process which the plaintiffs chose to abandon  halfway.   I am inclined to agree with the defendant’s counsels’ submissions that the  plaintiffs’ suit is bad in law and the same  deserves to be  dismissed.

25) The upshot of the foregoing  is that the plaintiffs have not satisfied this court that they have a cause of action against the defendant. In the circumstances, I hereby proceed to dismiss their suit with costs to the defendant.

Signed, Dated and Delivered atMakuenithis4thDay ofApril, 2018

MBOGO C.G

JUDGE

In the presence of;

1st & 2nd plaintiffs

3rd Defendant Absent

Defendant present

Court Clerk  Kwemboi

MBOGO C.G

JUDGE

4/4/2018