Leonard Ochieng Otieno v Samuel Otieno Osembo [2015] KEELC 324 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 7 OF 2015.

LEONARD OCHIENG OTIENO……………………………… PLAINTIFF/APPLICANT

=VERSUS=

SAMUEL OTIENO OSEMBO………………………………… DEFENDANT/RESPONDENT

R U L I N G.

LEONARD OCHIENG OTIENO, the Applicant, filed the Notice of motion under certificate of urgency dated 27th January, 2015 against Samuel Otieno Osembo, the Respondent, seeking  for injunctive orders  restraining  the Respondent from  collecting any rental payments from tenants on the suit property, Bukhayo/Mundika/5042. The Applicant has set out five grounds, marked  (a) to (e) on the application.  The  application  is supported by the Applicant’s  two affidavits  sworn on 27th January,  2015 and 22nd April, 2015.  The applicant  has  among other deponed that he got registered  as the proprietor  of the suit property on 6th October, 2014 and was issued with the title  deed on 8th October, 2014, after emerging as the highest bidder during the public auction  of the suit land on 6th August,  2014.  That on the suit land are rental properties whose rent  the Respondent, who  was the previous registered  owner of the suit land, continues to collect despite the Applicant asking him to stop.

The application is opposed by the Respondent through  the grounds of opposition dated 11th February, 2015 setting out four grounds.  The Respondent indicated in ground 3  that he is owner of  Bukhayo/Mundika/5042, which neighbours the suit property and that the issue  herein is a boundary dispute which should be referred to the County Surveyor.

The application  came up for inter partes  hearing on 17th June, 2015,  and  M/S. Chunge  and Mr. Ashioya advocates  for the Applicant and Respondent  respectively, tendered their rival  submissions.  The court  has considered the grounds on the application, grounds of opposition by the Respondent, submissions by counsel, the supporting and further supporting affidavit by the Applicant and find as follows;

That indeed the Applicant is the registered  proprietor of the suit land Bukhayo/Mundika/5042 as confirmed by the copy of the title deed and certificate  of official search annexed to the supporting  affidavit  sworn on the 27th January, 2015 and filed  with this application.  The provision of section 26 of the Land Registration Act,  2012 requires  this court to take the person  named  on the certificate  issued by the Registrar, as proprietor  of the land, to be  the absolute  and indefeasible owner,  subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate.  The title  of the registered proprietor, like the Applicant  herein, can  only be challenged on the ground of fraud or misrepresentation to which the registered  proprietor  is a party to or where the certificate  of title has been  acquired  illegally, unprocedurally or through  a corrupt scheme. There  has been no challenge so far  on the title of the Applicant in this matter.

That  contrary to the Respondent’s  claim in ground 3 of his grounds of opposition  dated 11th February, 2015 that  land parcel Bukhayo/Mundika/5042 was his, the  Applicant  has annexed a copy of the  title deed and certificate  of official search that shows the land was registered in his names,  Leonard Ochieng Otieno,   on  the 6th October, 2014.  That should the Respondent  had meant to  refer to Land parcel  Bukhayo/ Mundika/5041 instead of parcel 5042, the copy of certificate  of official search annexed  to the  Applicants  further supporting affidavit sworn  on 22nd April, 2015 shows that the land was  registered in the names of JOSEPH TEMBA MUKWANA on 19th August, 1992.  The  Respondent  has  not sworn  an affidavit to explain  how  land parcel  Bukhayo/Mundika/5041 was his  or to dispute  the Applicant documentary  evidence  that it is registered  in the names of another person other than the Respondent.

That the  court  further finds that the Applicant, as the registered proprietor of the suit land, is entitled to  the rights of a proprietor  in accordance  with Section  25 of  the Land Registration  Act,  2012. That as the owner  of the suit land, the Applicant also owns  all that which  is appurtenant  on it, including  the developments  thereon.  The Applicant  is therefore  entitled to the rent arising  from those occupying the developments on the suit land as to hold otherwise would lead him to suffer  to irreparable loss. The Applicant has therefore  established a prima facie case and his application has merit.

4.                     That  the application  dated  27th  January, 2015  is  therefore allowed in  terms of prayers 4 and 5 with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON…………8TH …DAY OF ……JULY,…………..2015.

IN THE PRESENCE OF;

PLAINTIFF/RESPONDENT………………ABSENT.…………………………………

DEFENDANT/APPLICANT………………ABSENT………………………………

COUNSEL……MR. ONSONGO FOR ASHIOYA FOR PLAINTIFF/RESPONDENT.