Kugun (Suing on his own behalf and on behalf of the estate of the late Kugun Kibarno) v Sum & another [2022] KEELC 14909 (KLR)

Kugun (Suing on his own behalf and on behalf of the estate of the late Kugun Kibarno) v Sum & another (Environment & Land Case 233 of 2012) [2022] KEELC 14909 (KLR) (18 November 2022) (Judgment)

Neutral citation: [2022] KEELC 14909 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Case 233 of 2012

A Ombwayo, J

November 18, 2022

Between

Joseph K Kugun

Plaintiff

Suing on his own behalf and on behalf of the estate of the late Kugun Kibarno

and

Gilbert Kipkoech Sum

1st Defendant

Kimaiyo Arap Keino

2nd Defendant

Judgment

1. On February 15, 2006, Joseph Kibungei Kugun suing on his own behalf and on behalf of the estate of the late Kugun Kibarno alias Kugun Arap Barno came to this court against Gilbert Kipkoech Sum and Kimaiyo Arap Keino claiming that between 1962 and 1968 the plaintiffs late father Kugun Kibarno alias Kugun Arap Barno, one Japheth Arap Lang’at one Kibirech Arap Muigei and the 2nd defendant negotiated with the then registered owner Mrs Annie Elizabeth Steenkamp to lease the whole of the said suit land with an option to purchase at a consideration of ksh 100,000. The plaintiff stated that his father the late Kugun Kibarno alias Kugun Arap Barno subsequently took possession and commenced purchase of the suit land and paid out a sum of kshs 50,000/=.

2. The plaintiff claims that somewhere in 1964 the 2nd defendant invited the 1st defendant and 7 others to buy shares on the farm who contributed a sum of ksh 5,000 each being part of the purchase price thereof.

3. The plaintiff states that the plaintiffs father Kugun Kibarno alias Kugun, Arap Barno and the 2nd defendant subsequently cleared the balance of the purchase consideration of Kenya Shillings 10,000/= by paying kshs 5,000/= each and subsequently thereto a letter of consent was issued by the Uasin Gishu Land Control Board.

4. The plaintiff avers that on March 4, 1974, the leasehold on the said piece of land was fraudulently registered by the defendant in the names of the plaintiff’s father the said Kugun Kibarno alias Kugun Arap Barno, the 1st and 2nd defendants, one Kipsang Arap Singoei, one Kimutai Arap Saina, one Ndegei Arap Bitok, one Kiprono Arap Saina, one Kipkemboi Arap Ngeny, one Kiplagat Arap Sinyei and one Kipkejir Arap Serser as tenants in common in equal shares

5. The plaintiff avers that the plaintiff’s late father paid the sum of Kenya shillings Nineteen thousand Seven Hundred and Sixty (kshs 19,760/=) to the said Annie Elizabeth Steenkamp between 1963 and 1966 which entitled him to undivided share of 177 acres.

6. The plaintiff avers that a stalemate was reached when it turned out that the estate of the deceased was fraudulently deprived in the allocation for sub-divisional purposes of the said 177 acres by the 1st and 2nd defendants jointly and severally.

7. The plaintiff avers that there has been no agreement on the distribution of the suit land and there has been no sub-division on the ground to date.

8. The plaintiff avers that the 1st and 2nd defendants have jointly and severally fraudulently caused the suit land to be sub-divided on paper on the basis of shares and new sub-titles issued to some of the registered owners.

9. The plaintiff avers that the defendants have jointly and severally and repeatedly tried to cause the district surveyor to sub-divide the suit land without taking into consideration the individual contributions. There are no concluded or pending proceedings between the parties herein over the same subject matter other than Eldoret High Court Civil Case no 177 of 1994 between the plaintiff and others and the defendants, in which the plaintiff withdrew his claim.

10. The plaintiff prays for a declaration that the registration of the late Kugun Arap Barno, the defendants and seven others as tenants in common in equal shares is null and void. The purported sub-division of the suit land on paper on the basis of shares and the subsequent issuance of titles is null and void. The plaintiff further prays for an order that the register be rectified to show that the late Kugun Barno, the defendants and the said seven others were simply tenants in common and that they be registered as such.

11. The purported sub-division of the suit land on paper on the basis of shares and the subsequent issuance of titles be nullified and the respective registers be cancelled accordingly.

12. The suit land be distributed to the registered owners and or their estates according to the individual contribution and considering the need for necessary public utilities.

13. Moreover, the plaintiff prays for an order of permanent injunction and costs of the suit with interest thereon at court rates

1st Defendants case 14. The 1st defendant filed defence through the firm of Gicheru and company advocates stating that parcel number LR no 8313 was initially leased out by Mrs Annie Elizabeth Steenkamp to Kugun Arap Barno and Kimaiyo Arap Keino with option to purchase. subsequently Kugun Arap Barno and Kimaiyo Arap Keino approached the 1st defendant in 1968 requesting him to join them so that they could purchase the suit land whereupon the 1st defendant accepted the offer and invited Kipsang Arap Singoei Kimutai Arap Saira, Ndegei A Bilok, Kiprono Arap Saine Kipkemboi Arap Ngeny, Kiplagat Arap Sinyei and Kipkorir Arap Serser. According to the 1st defendant the purchase price was registered by all the parties and an agreement reached and the transfer executed in favour of all the parties by Anne Elizabeth Steenkamp. The 1st defendant denies any fraudulent action. He states that Kimutai Arap Saina, Ndege Arap Bitok, Wesley Busienei and Kipkejir Arap Serser sold their shares to the 1st defendant hence the 1st defendant share rose to 19/60 thus 283. 1 acre. The 1st defendant prays that the suit be dismissed with costs.

2nd Defendant’s case 15. The 2nd defendant in his amended defence denied having committed any fraud and stated that the estate of the deceased plaintiff had been allocated its rightful share of 89. 4 acres. The 2nd defendant filed a counter claim on the basis that the plaintiff late father and the 2nd defendant purchased the property in dispute measuring 894 acres formerly owned by Steenkamp sometimes in 1963 at a consideration of kshs 100,000/=. They paid kshs 50,000/= and since the completion period was due, the 2nd defendant invited 7 people making a total of 10 invited persons. The 10 persons including the 2nd defendant and the plaintiffs father contributed kshs 50,000/= to clear the purchase price. The 1st defendant was mandated to calculate the shareholding but he took advantage of the plaintiff’s father’s illiteracy and ignorance of the other members and misrepresented to the Land Control Board that they were tenants in common and allocated himself and Kiplagat Arap Singoei more land. The 2nd defendant prays that the suit be dismissed and the counter claim be allowed and that the court do make orders that the suit land be subdivided into two half to the plaintiff’s father beneficiary and the 2nd defendant. That the remaining half of the suit land be subdivided equally among the 10 members including the plaintiff’s father and the 2nd defendant. That the land surveyor be ordered to carry out the survey work and establish the individual shares according to contribution and the chief land registrar be compelled to ensure individual title deeds are issued to respective beneficiaries. He further prayed for Mense profits and costs of the suit plus interests.

1st and 2nd interested parties claim 16. The 1st and 2nd interested party case is that the suit land known as Lengut farm 8313 measures 894 acres. According to the 1st and 2nd defendant the suit land were bought by 10 individuals namely:- Gilbert Kipkoech Sum, Kimaiyo Arap Keino, Kipsang Arap Singoei – their Father, Kimutai Arap Saina , Ndegei Arap Bitok, Kiprono Arap Saina,Kipkemboi Arap Ngeny, Kugun Arap Barno,Kiplagat Arap Singoei and Kipkejir Arap Serser

17. The 1st and 2nd interested parties claim that the suit against them is time barred and that the suit is bad in law as they could not be sued in their individual capacities. The 1st and 2nd interested parties case is that the suit herein fell within the Regime of the RTA (repealed) there was a register indicating various transactions over the land. Entry number 13 registered on 4th March 1974 indicated that the land was transferred to Gilbert Kipkoech Sum, Kimaiyo Arap Keino, Kipsand A Singoei, Kimutai A Saina, Nege Bitok, Kiprono Arap Saina, Kipkemboi Arap Ngeny, Kugun Arap Barno, Kiplagat Arap Singoei and Kipsesir Serser as tenants in common in equal shares for kshs 100,000/=. According to the 1st and 2nd interested parties the 3rd interested party transferred his whole entitlement to the 1st and 2nd interested party. The 1st and 2nd interested party prays that the titles held by the Geoffrey Sum amounting to 19/60 shows an equivalent to 283. 1 acres of 894 acres in the suit land are legitimate and should the plaintiff/defendant or 3rd interested party be in occupation thereof, eviction order should issue.

3rd Interested party’s case 18. The 3rd interested party filed Eldoret no ELC 57 of 2013 against the administrators of the 1st defendant seeking a declaration that the estate of the late Kimutai Arap Saina is entitled to 89. 4 acres of parcel number LR 8313 and a permanent injunction restraining the defendant from dealing with the 89. 4 acres that the interested party are entitled to. In a nutshell the 3rd interested party claims that the 10 individual members indicated in the pleadings are entitled to 89. 4 acres each.

4, 5 and 6th Interested parties claim 19. The claim by 4th, 5th and 6th interested party as per the affidavit of Benjamin Sang is that their father was one of the people that purchased the land and that each of the 10 persons were entitled to 89. 4 acres of the 894 acres of the land. That their father gave kshs 10,000 for himself and for Kiptoo Chepngok each having a share equal to ksh 5,000/=. They state that Kshs 100,000 was paid by the 10 members.

Cliam by 7, 8 & 9th Interested party 20. The 7th, 8th and 9th interested party are siblings. They are children of Kiptoo Chepngok and are in possession of 89. 4 acres of the land parcel. They have erected structures and have been tilling the same.

Testimonies 21. When the matter came up for hearing Joseph Kibungei Kugun testified that the suit land is 894 acres but was not properly registered and distributed as they did not get their rights as their father was shot changed. His father and Kimaiyo Arap Keino started to buy the land in 1963 and called Gilbert Kipkoech Sum and 7 others to help pay for the land and helped the two initial buyers to clear the purchase price. At that time, the two initial buyers had paid ksh 50,000. The 10 partners each contributed Ksh 5,000 to clear the balance of Ksh 50, 000. Mr Kipsang Arap Singoei paid Ksh 10,000 thus 5,000 for himself and the remaining 5,000 for Keino but Keino was asked to refund Mr Singoei the money. He wanted the land subdivided before the new titles could be issued. The plaintiff prayed for their rightful share of the land as they had paid a total of Ksh 22,670. On cross examination by Mrs Rotich, counsel for the 1st defendant, he states that his father lived in the parcel of land in 1963 and utilized the same. That in 1992, his father knew that he had been oppressed. On cross examination by Mr Aseso, learned counsel for the 1st and 2nd interested party, he states that he is not aware of any case filed by his father. He confirmed that the register had an entry number 13 that showed a transfer to the partners as tenants in common in equal shares. He confirms that Kugun Arap Barno died in 1992 without filing any case in court. On cross examination by Mr Kiboi counsel for the 3rd interested party, he states that the land was bought by 10 persons who paid equal amount. They were registered as tenants in common in equal shares.

22. The 2nd defendant Kimaiyo Arap Keino testified that he was one of the 10 partners who bought the parcel of land from Annie Elizabeth Steenkamp. They bought the land and moved there-in with their children. The land measured 894 acres and was purchased for Ksh 100, 000. Kimaiyo Arap Keino died before cross examination and was substituted with Thomas Cheruiyot who continued and testified that the partners herein contributed money for the purchase of LR 8313 measuring 894 acres. He states that initially there were two people buying the land thus Kimayio and Kugun Barno who paid Ksh 50,000 in 1967 but looked for 8 other people to assist who paid Ksh 5,000 each and the same amounted to Ksh 40,000. The initiators of the partnership paid Ksh 5,000 each to make it a total of Ksh 50, 000. He prayed that the land should be shared according to the contribution of each member. On cross examination he states that he was born in 1956 and therefore was a minor during the transaction. He relied on the available documents to give his testimony.

23. John Kipkemboi Sum was called as the first witness for the 1st and 2nd interested part and relied on the statement dated September 13, 2013 filed on September 17, 2013 in Eldoret ELC no 57 of 2013. The statement was adopted as evidence in chief. Gilbert Sum who died in 2010 was his father. He produced a grant of letters of administration intestate and claimed that his father was entitled to 283 acres being made of his initial 89. 4 acres and a further 89. 4 acres purchased from Wesley Busienei in the year 1973. The parcel of land had been purchased from Ndegei Bitok. He produced the consent to transfer and the transfer. He made another purchase from Kimutai Arap Saina amounting to 44. 7 acres He produced a transfer dated May 31, 1977. He produced the consent dated February 2, 1979. He further bought land from Kipkejir Arap Serser amounting to 59. 6 acres and produced the consent to transfer dated July 10, 1975 and the transfer dated September 25, 1979 hence these total to 283 acres. His father obtained title for the whole land. Those who sold their portions of land left and settled elsewhere. His father was the chairman of the group and ensured that all parties obtained certificates of title in respect of their interests in the suit land. The mother title was surrendered hence his father was issued with the certificates of title. The witness testified that all the transactions were entered in the register.

24. In respect of the claim by Sarah Saina of 89. 4 acres, he states that the family has been in possession of the land being claimed by Sarah Saina since 1968 and that the husband of Sara Saina died in 2012 without claiming the land. On cross examination, he states that his father bought a share from Kimutai Arap Saina but there is no agreement and that there is no application to the land control board for consent to transfer.

25. On behalf of the 3rd interested party, the court had taken the evidence of Sarah Job Saina debennesse due to her ill health. She testified that she lived at Kabiyet and was a business woman. Kimutai Arap Saina was her husband and was one of the 10 partners who bought the suit land. The partners were issued with documents of ownership such as a letter of consent. He paid 5. 000 shillings and was entitled to 89. 4 acres. She contributed towards the purchase but the land was registered in the names of her husband. She was in court as the legal representative of the deceased Kimutai Arap Saina. She produced a grant of letters of administration intestate and a certificate of confirmation of grant. She narrated how they were chased from the land by Arap Sum after the death of her husband. She prayed that she be given the land and that the occupant should be evicted. The 3rd interested party unfortunately passed on after her testimony.

26. The 3rd interested party was substituted by Rhoda Jetekeny Saina the daughter to Kimutai Arap Sain and Sarah Job Saina. She testified that her father was one of the partners and beneficiary of the suit property and therefore was entitled to the same. Her father was a transferee of the property.

27. The 4th, 5th, and 6th interested parties fronted Benjamin Bekibei Sang who testified on behalf of the estate of Kipsang Singoei (deceased) and who was his father and a beneficiary of the suit property. He also testified on behalf of Kenneth Sang, and Julius Limo who are his brothers. That their father Kipsang Arap Singoei paid ksh 10,000 part of it was lending Kimaiyo Arap Keino ksh 5,000. That Kimaiyo Arap Keino did not pay the money back. In a nutshell he states that the land was not properly distributed by the chairman of the partnership. They claim to be entitled to 89. 4 acres.

28. The 7th, 8th and 9th interested parties were represented by Mr Kagunza and called Mr Samwel Kipsaina Too as their sole witness. The interested parties brought the claim on behalf of Kiptoo Chemwok. He is claiming 89. 4 acres. Parties filed rival submissions.

Analysis and determination 29. I have considered the pleadings, evidence on record and rival submissions and do find that the land in dispute is I R 17351, L R number 8313 that had been registered in the name of Stephanus Hendrick Steepkamp of Moiben under a lease of 999 years from October 1, 1957. The property was registered in the name of Annie Elizabeth Steepkamp on May 6, 1960 by way of transfer and charged to the Land Agricultural Bank of Kenya. On July 22, 1968, a caveat was registered by Kipkiyeng Kibeney and Jackson Ololingirony in their personal capacity and as agents of 23 others claiming a purchaser interest. The caveat was removed on February 10, 1972 and on March 4, 1974 a transfer was registered in the names of Gilbert Kipkoech Sum, Kimaiyo Arap Keino, Kipsang Arap Singoei, Kimutai Arap Saina, Ndege Bitok, Kiprono Arap Sana, Kipkemboi Arap Ngeny, Kugun Arap Barno, Kiplagat Arap Singoei and Kipkejir Arap Serser for ksh 100,000. This was entry no 13 in the register.

30. On December 20, 1979 there was a transfer to Kiplagat Arap Singoei of the undivided share of Kipkejir Arap Serser for kshs 16,500 and on the same date, there was a transfer registered to Wesley Busienei of the undivided six- sixtieth (6/60) share of Ndegei arap Bitok for ksh 10,500.

31. Moreover, on the same date there was a transfer to Gilbert Kipkoech Sum to include six- sixtieth (6/60) share of Wesley Busienei for kshs 27, 000.

32. On the same date there was a transfer of the undivided share of four- sixtieth (4/60) of Kipsesir Serser to Gilbert Kipkoech Sum for kshs 32,450. On the same date a transfer was registered to Gilbert Kipkoech Sum of the undivided three sixtieth (3/60) share of Kimutai Arap Saina for kshs 7,500 on December 20, 1977 there was a transfer of three sixtieth (3/60) share from Kimutai Arap Saina to Joseph Arap Kogo for Kshs6,000. On November 28, 1980 there was a transfer to Kiptoo Arap Chengok to include six sixtieth (6/60) share of Kipsang Arap Singoei for kshs 10,000.

33. On November 16, 1982 the registrar of titles issued certificates of tittle to the following persons: -1. Joseph Arap Kogo3/60 share2. Kiprono Arap Chemngok 6/60 share3. Kugun Arap Barno 6/60 share4. Kimayo Arap Keino 6/60 share5. Kipkoech Arap Ngeny 6/60 share6. Kipkoech Sum 19/60 share7. Kiprono Arap Saina 6/608. Kiplagat Arap Sitiemei 8/60 share

34. It can be noted that before the sale of the property to the 10 parties, the Land Control Board Uasin Gishu gave consent to Annie Elizabeth Steenkamp to sell the whole property to the 10 parties for a consideration of ksh 100,000/= for the residue Lease. The transfer dated October 9, 1973 had been executed before Attorneys and registered on March 4, 1974.

35. In a letter dated February 17, 1981, the firm of Kaplan Stratton acting for the parties confirmed ownership of the parcel of land as follows:-1. Joseph A Kogo- LR 3712 (Issued)2. Kiptoo Arap Chemwok Ar 371113. AR3710 of Kugun Arap Barno4. AR 37110-Kimaiyo Arap Keino5. AR 37112-Kipkemboi Arap Ngeny6. AR.317114- Gilbert Kipkoech sum7. AR37115- Kprono Arap sum8. IR3116 Kiplagat Arap SinyeiThe issues raised by the plaintiff is their submissions are follows:-1. Whether the suit is time barred.2. Whether the interested party can be sued without a grant of letter of administration.3. The entitlement and ownership of the parcel of land.

36. On whether the suit is time barred this court finds that the first suit was filed on February 15, 2006 whereas the certificates of title were issued on November 16, 1982. The suit was filed approximately 24 years after the cause of action had accrued. Section 7 of the Limitation of Action Actprovides:-7. Actions to recover landAn action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

37. I do find that the suits filed herein were stale having been filed more than 12 years after the cause of action accrued.

38. On the issue of capacity, I do find that the 1st and 2nd interested parties are not the parties in the sale transfer as they are sons of the deceased partner and therefore could not be sued in their individual capacity.

39. On the ownership of the suit property I do find that the volumes of documentary evidence produced by the parties indicate that there were 10 individuals desirous of purchasing the suit property. In the transfer documents the transferor, Annie Elizabeth. Steenkamp acknowledged that she had transferred the property to: -1. Gilbert Kipkoech Sum2. Kimaiyo Arap Keino3. Kipsang Arap Singoei4. Kimutai Arap Saina5. Ndege Bitok6. Kiprono Arap Saina7. Kipkemboi Arap Ngeny8. Kugun A Barno9. Kiplagat Arap Singoei- only surviving10. Kipsesir Arap Serser

40. However, two of the parties transferred their interest to the other parties and therefore she remained with 8 partners thus:-1. Joseph Arap Kogo- LR.37122. Kiptoo Arap Chemwok Ar.371113. AK 3710 of Kugun Arap Barno4. AR 37110-Kimaiyo Arap Keino5. AR 37112-Kipkemboi Arap Ngeny6. AR 317114- Gilbert Kipkoech sum7. AR 37115- Kprono Arap saina8. IR 3116 Kiplagat Arap Sinyei

41. I do not find any scintilla of evidence of fraud or illegality in the dealings that led to the transfer and registration of the suit land in the names of the eight (8) individuals. In conclusion, I do find the claim by the plaintiff, and the counter claim by the 2nd defendant, and the claim by the 3rd interested party, not proved.

42. Moreover this court finds that there is a presumption of regularity that all acts done by a public official has lawfully been done and that all procedures have been duly followed and therefore in this case, the instrument of transfer was signed, executed and registered before entry was made in the register of the suit parcel of land. This was done by the public official being the land registrar upon presentation of documents by advocates appointed by the parties.

43. Section 100 of the Evidence Act, cap 80 Laws of Kenya provides “When language used in a document is plain, and it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. Guided by this provision, it is my considered view the parties herein cannot contradict the contents of the various letters especially by Kaplan and Stratton which plainly indicated how the parties were to share the property.

44. This court is informed by provisions of section 97(1) of the Evidence Act which inter alia stipulates that when the terms of a grant or any other disposition of property has been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such grant or other disposition except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible. Guided by sections 97(1) and 100 of the Evidence Act, no oral evidence is admissible to contradict or vary the contents of the documentary evidence indicating the registered owners of the suit land.

45. I do find guidance in the case of Chief Land Registrar and 4 others Vs Nathan Tirop Roich and 4 others 2018 eKLR where the court of appeal held that :-“Guided by the dicta in Mwinyi Hamisi Appeal vs Attorney General, Civil Appeal no 125 of 1997, it is our considered view that the entry in the register that Eldoret Municipality Block 15/1 measuring 666. 41 was surrendered to the Government ipso jure extinguished all rights and interest of the then registered proprietors over the suit property. We note that the 1st to 4th respondents contend that the surrender was unlawful. There is a presumption that all acts done by a public official has lawfully been done and that all procedures have been duly followed. The onus is on the 1st and 4th respondents to prove otherwise. They have failed to do this. A bare allegation that a lawful procedure was not followed is not proof of the allegation. It was open to the 1st to 4th respondents to make an application before the trial court to compel the Commissioner of Lands to produce the original instrument of surrender, the memorial and the endorsement thereon. The 1st to 4th respondents failed to do so.“87. In our view, a party making a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence. We are however cognizant that where the defendant’s case supports that of the plaintiff and contains evidence on which the plaintiff may rely, the plaintiff is entitled to rely on and make use of such evidence. In a claim for declaration of title, as the instant case, the onus is on the Petitioners to satisfy the Court on the evidence produced by them that they are entitled to the declaratory orders sought.”

46. Ultimately the suit by the plaintiff, and counter claim by the 2nd defendant are dismissed with no orders as to costs as the suit revolves on land acquired by people who set out as friends to purchase the property and appear to be neighbors. The claim by the 3rd interested party against the 1st and 2nd interested parties is also dismissed as the late Kimutai Arap Saina never complained of the transfer of his share to Gilbert Sum and in-fact vacated the land and never sued Gilbert Kipkoech Sum for conversion or trespass. This court directs that the parties do share the suit parcel according to the Register and transactions therein as follows.1. Joseph Arap Kogo- LR 3712 =47. 5 acres2. Kiptoo Arap Chemwok -Ar 37111=89. 4 acres3. Kugun Arap Barno- AK 3710 =89. 4 acres4. Kimaiyo Arap Keino- AR 37110 =89. 4 acres5. Kipkemboi Arap Ngeny- AR 37112-=89. 4 acres6. GilbertKipkoechSum-AR 317114- Sum=283. 1 acres7. Kiprono Arap saina - AR 37115- =89. 4 acres8. Kiplagat Arap Sinyei- IR 3116=119. 2 acres

47. For avoidance of doubt parties are directed to bear own costs.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF NOVEMBER, 2022. A. O OMBWAYOJUDGE