M A O v O E [2014] KEHC 3020 (KLR)

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 49 OF 2013 (FORMERLY CM.CC. 377 OF 2012)

M  A O …………………………..  PLAINTIFF

VERSUS

O E…………………………………….   DEFENDANT.

J U D G M E N T,

M A O hereinafter to as the Plaintiff, filed the  plaint dated 12th November, 2012 claiming  7. 5 acres out of Samia/Wakhungu – Odiado/648 and costs from Obando Egondi hereafter referred to as the Defendant.

The plaint was clearly filed before Busia CM Court but on 1st July, 2013 was referred to this court for hearing.  Though there are no documents to explain this move by the Lower court, this court has seen other filed forwarded to this court on the basis that the Lower court had no jurisdictions of the Land Registration Act No. 3 of 2012, Land Act No. 6 of 2012 and the Environment and Land Court Act No. 19 of 2011.

The Plaintiff avered that she is a wife to the Defendant who is the registered proprietor of Samia/Wakhungu – Odiado/498. The  they got eleven children out of whom only four are alive. That  the Defendant had  given a bigger share of the land to her co-wife  and sold 2. 0 acres to a third party. That she prays the Defendant  be ordered to  subdivide the land equally and  transfer  7. 5 acres to her.

That  Defendant filed defence dated 22nd November, 2012  denying that he had distributed  his land giving  plaintiff a lesser share than her co-wife and selling two acres to a thirty party. He also denied discriminating against the Plaintiff, her children and grandchildren.

The matter came up for hearing on 3rd March, 2014  but was adjourned to 26th May, 2014. On that day, Plaintiff disclosed she was still living with her husband (Defendant) as husband  and wife and the court advised her to seek an out of court settlement with the assistance of elders. The hearing was  adjourned  to 18th June, 2014 when the Plaintiff told  the court the elders had declined to deal with the matter.  The hearing  then proceeded.

During  the hearing,  the Plaintiff  told the court that her youngest child was married and has children. She said the Defendant owned Samia/Wakhungu – Odiado/1558 and 1449. That parcel Samia/Wakhungu – Odiado/1558 was still in the names of the Defendant while parcel Samia/Wakhungu – Odiado/1559 had been transferred to Bakari Keya Kolongol. The Plaintiff added that she cannot tell the acreage of the land the family of his co-wife   who has since died was or the acreage of the portion of the land she was using but put it to either 2 or 3 acres. Plaintiff  prayed for  more land to use.

Having  considered the evidence  adduced by Plaintiff, the court finds as follows;

That the Plaintiff and Defendant  are husband and wife.

That the Plaintiff and Defendant  are still living together.

That the Plaintiff  conceded that she has a portion of land that she uses whose size she gave as about two  to three acres. She  however said she needed more land to use.

That the Plaintiff claim is to have the Defendant ordered to subdivide  the land Samia/Wakhungu- Odiado/498 into two equal shares and transfer  one share of 7. 5 acres  to the Plaintiff’s house.  Even  though she did not say for whose benefit the other  share  would go to, the court takes it that it would go to the house of the Defendant/s  first wife who is reportedly deceased.

That the  copies of the three registers (green cards)  Plaintiff availed  to the court, the suit land as described does not exist  as the register  for Samia/Wakhungu- Odiado/498  was closed on 3rd July, 2007 upon  the land being subdivided  into parcels 1558 and 1559. That parcel 1558  measuring about 6 hectares was left, and  the Defendant while parcel  1559  measuring about 0. 8 hectares to Bakari Keya Kolongol on 31st  July, 2009.

That the above shows that by the time this suit was filed, land  parcel Samia/Wakhungu-Odiado/498 did not  exist and the Plaintiff did  not amend her pleadings to  substitute  the suit land with the correct reference  now in the names of the Defendant.

That as the court cannot grant a property not clearly pleaded and the owner given the opportunity to be heard by being served with the appropriate, the Plaintiff’s suit fails on a technicality that the suit land does not exist. That for reason  that  the property  Plaintiff sued  Defendant for does not exist, this suit is dismissed with no orders as to costs.It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 17th DAY OF JULY, 2014.

IN THE PRESENCE OF;

JUDGE.