John Wafula Khisa v John Khameme Wanyela & Attorney General [suing on behalf of the District Land Registrar, Bungoma District] [2014] KEHC 1771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

HCC NO. 67 OF 2011

JOHN WAFULA KHISA......................................................................APPLICANT

VERSUS

1. JOHN KHAMEME WANYELA

2. THE HON. ATTORNEY GENERAL [suing on behalf of the

DISTRICT LAND REGISTRAR, BUNGOMA DISTRICT.............RESPONDENTS

JUDGMENT

1.  In this suit, the plaintiff sued John Khameme Wanyela as  1st defendant and the Land Registrar, Bungoma  District as the  2nd defendant.  The plaintiff sought this court to issue the following orders;

i. An order for cancellation of registration of the parcel of land and the title documents issued to 1st defendant in L.R. No. Kimilili/Kimilili/1661 to have it  reverted back to the plaintiff.

ii.  Permanent injunction restraining the 1st defendant, his servants and authorized agents from interfering, alienating or wasting     the plaintiffs land.

iii.  Cost of the suit.

2.  The defendants were dully served and each of them filed their respective statements of defence.  The 1st Defendant  filed a statement  through the law firm of Okile & Co. advocates while the  2nd defendant was represented by the Attorney General.  The plaintiff then proceeded to  fix this matter  for hearing which dates were served on both defendants as per the affidavits of process server on record. However only the 2nd defendant participated in the hearing.

3.  The plaintiff's case proceeded on 26th November 2013.  He testified  as PW1 and told court that he was a retired teacher, currently a farmer.  He claims ownership to land parcel no. Kimilili/Kimilili/1661 and has a title deed to  it which he produced as pex. 1. He bought the  land from  Philip Wanyonyi Sisenda – PW2 at a consideration of Kshs. 150,000/=.  That he lost his original  sale agreement but produced an addendum dated 2nd August 2013 as pex. 2.  Later he processed title in his name using the laid down procedures.  In 2005, he did  a search which revealed the title was in his name (Pex. 3) but in 2007 when he carried another search (pex. 4), the records had the  1st defendant's name as the owner of the suit property.

4.  PW1 denied having any dealings with the 1st defendant.  The search revealed the 1st defendant was registered as owner on 20th June 2000     which  time he had not bought the land in  question. On learning about this, he reported the incident to the Bungoma District Land Registrar.  The registrar summoned both of them to appear before him – Pex.

5.  He went but the 1st defendant never turned up.  He was advised to  take up the matter  with the Criminal  Investigation        Department which he did forthwith.  The Land Registrar also restricted the title as  per the green card – Pex. 8. From this card, it appears he transferred  the land to the  1st defendant which fact he denies.  In light of this evidence, he urged court to  revoke the title of the 1st defendant and declare him as the legal owner of the land   and costs of this suit  awarded to him.

5.   The plaintiff called his second witness  Philip Wanyonyi Sisenda hereinafter refereed to as PW2.  He introduced himself as a Catechist of Chepkaka Catholic Church and living in Kimalewa. He knew the  plaintiff as they had an agreement with him over plot no.  Kimilili/Kimilili/1661.  The agreed purchase price was Kshs. 150,000/=  which he confirmed he was paid in full. He has never sold the land to  anyone else and  has no complaint against the plaintiff.   Cross  examined by Ms. Maina for the 2nd defendant, he said he bought this plot from Jonathan Situma.  The plaintiff closed his case.

6. The case was deferred to  26th May 2014 for defence hearing.  The  1st defendant again failed to attend  and the plaintiff applied  to have his   case closed which application the court granted. On the part of the 2nd defendant, they  invoked paragraph 7 and 8 of their statement of defence which pleaded they did not oppose the plaintiff's claim but urged the court  to direct the  1st defendant to  bear the costs of this suit.  The 2nd defendant closed his case without adducing any oral evidence.  The parties did not submit and  left it to  court  to reach a just determination.

7.  Although the 2nd defendant has not opposed the plaintiffs claim and the  1st defendant failed to attend court,  I will still consider the    evidence adduced vis-a-vi the 1st defendant's statement of defence on record to establish if the plaintiff has proved his case  within the set  standards of the Law.  In the statement of defence by the 1st defendant, he alleged to have bought the land from Shem Nalianya Sipitali. He also averred the plaintiff does not even know the  location of the suit parcel.

8.  The 1st defendant  admitted  in paragraph 12 that he was summoned by the CID where he recorded a statement on how he  acquired the suit land and when he proved ownership of the suitland.  He denied the allegations of fraud pleaded by the plaintiff in paragraph 8 of the plaint.  He also wondered  why the plaintiff delayed before  filing this suit.  The 1st defendant did not  file a list of documents to his deferments. Therefore the issues  raised in defence  remains mere allegations  that have not been proved  contrary to  the requirements of the  Law that  he who alleges must prove (section  107 & 108 of Evidence Act and order 18 rule 2 of the Civil Procedure Rules).  The  2nd defendant  pleaded  in paragraph 5 thus;

(a).  There is no  transfer document in  this registry traceable so far as to support the  entry of ownership on the  register.

(b).  There is no evidence that any officer in lands registry was at any time involved in the transaction  in  favour of the  1st defendant.

(c). …... this was a direct transfer from the plaintiff to the  1st defendant as reflected in entry nos 9 & 10 which  is not verifiable  as there exist no transfer document in the  registry.

9.  In the register for Kimilili/Kimilili/1661 handwritten and by the 2nd defendant in  their list of documents, Pex. 8 entry no. 7 shows the plaintiff was  registered as owner of land on 15th May 2000 having acquired it from Philip Wanyonyi Sisenda – PW2.  The document     indicates the plaintiff transferred the land to the  1st  defendant on 20th June 2000.  The name of Shem Sipitali who  sold the  land to the 1st defendant does not appear on the document. In  pex. 9,  also  shows  same details as pex. 8.  The plaintiff has said he did not sell   the land to the  1st defendant any time  at all and further  in the year 2000, he had not  acquired the title to the property so he had  no capacity to sell the suitland. The 1st defendant was summoned by the District land Registrar to appear before  him on  24th  October 2007 (pex. 5) but he never did.

10.      It appears therefore that the 1st defendant acquisition of the title to   the property is questionable just because the person who sold to him the land was not  the registered owner  at any given time and secondly because  the land  records availed to court  allege a direct transfer from plaintiff to himself yet in the year 2000, the plaintiff did not own the suitland.  I am satisfied  that in the given circumstances, the plaintiff has proved the  1st defendant  acquired  the  title in a fraudulent manner and his title should therefore be canceled.  The plaintiff has proved his case and I  allow  it with costs, by issuing the following orders.

(i).   The 1st Defendant's  ownership and/or claim to title Kimilili/Kimilili/1661 is fraudulent, illegal and unlawful and consequently his title deed be and  is hereby canceled forthwith.

ii).  The District Land Registrar Bungoma to  forthwith delete the name of the 1st defendant  John Khameme Wanyela from the            register of title no. Kimilili/Kimilili/1661

iii).  The 1st defendant be and is hereby permanently barred from interfering in any manner  with the plaintiff's use and occupation of land L.R. Kimilili/Kimilili/1661.

v).   Costs of this suit  awarded to the plaintiff to  be paid by the  1st defendant.

DATED and DELIVERED  at Bungoma  this 7th October  2014.

A. OMOLLO

JUDGE.