M N W v Z L C [2015] KEELC 203 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 95 OF 2011

M N W ....... PLAINTIFF

VERSUS

Z L C ............ DEFENDANT

J U D G M E N T

INTRODUCTION

1.  The plaintiff is the wife of one of the Administrators of the Estate of the late A W M who was the registered owner of L.R. No. Ndivisi/Ndivisi/1778(suit land). The defendant is a cousin of A W M (deceased).  The plaintiff brought this suit against  the defendant seeking for an eviction order and a permanent injunction restraining the defendant from interfering with the suit land.

PLAINTIFF'S CASE

2.     The plaintiff testified that the deceased died in the year  2004. Prior to the death of the deceased, the defendant    had invaded and occupied ½ acre of the suit land.  After the demise of the deceased, she applied for Grant     of Letters of Administration. Grant of Letters of   Administration of the Estate of the deceased was given to her and one of the sons of the deceased.  The Grant      was later confirmed whereby the suit land was given to   her during the process of distribution of the deceased's     Estate.  A Certificate of Confirmation of Grant was   produced [Exhibit 1] and a copy of Title Deed     the name  of the deceased [Exhibit 2].

3.     The plaintiff asked the defendant to move out of the suit land but he refused.  She took him before the area District Officer who summoned the defendant but the      defendant did not attend.  The District Officer advised  the plaintiff to file a case in court.  This is how the   plaintiff  filed this case in which she seeks orders of eviction and injunction against the defendant.

DEFENDANT'S CASE

4.     The defendant testified that his grandfather K   had seven sons from three wives.  The first house had       four sons.  The second house had two sons and third house had one.  The defendant's father was calledM and he was from the third house. The first born son of K was J M who was father to the   deceased the husband of the plaintiff herein.  The    defendant's father died in 1951.  The defendant was taken in by J M the deceased's father. The         defendant was like J M's son.  He was    circumcised while staying with J M and even       married while he was with J M.  The defendant's     grandfather gave all his sons land.  The defendant's       father was given 8 acres.

5. The deceased's father later sold the land meant for the   defendant's father.  He sold the land to raise school fees for the deceased.  When the deceased was employed, his  father asked him to give some land to the defendant   because it is him who benefited from the defendant's     father's land which was sold to raise his fees.  When the  defendant demanded for his land, his uncles  started tossing him around.  He decided to file a claim at the   Tribunal.  The Tribunal ruled that the deceased's father   should give himfive acres.  His relatives started   complaining that he was not one of them.  They sat down and agreed that he be given two acres instead of   the five acres which the Tribunal gave him. The defendant contends that he has nowhere to go to if he is    evicted from the land he is occupying.

ANALYSIS OF EVIDENCE AND ISSUES FORDETERMINATION

6.     I have carefully gone through the evidence adduced by  both the plaintiff and the defendant. There is no contention that the defendant is occupying part of the   suit land.  The plaintiff is contending that the defendant  is occupying 1½ acres whereas the defendant contends   that he is occupying 2 acres.  The issue which emerges for  determination is whether the defendant is entitled to     any part of the suit land.

7.     The defendant called DW2 J B K      who is his uncle.  This witness testified that when the    defendant's father died, he was buried on a portion of   land which he had been given by his father.  The defendant's mother went away and remarried elsewhere.  When the defendant grew up, he came back and demanded to be given land where his father had been buried.  He was not given. He went and filed a case    before the Tribunal which ruled that the father of the deceased do give the defendant 8 acres. J M the deceased's father agreed to give the defendant 2 ¼ acres.  When the deceased died, his widow started claiming that the defendant had no land.

8.     Another witness called by the defendant is DW3 J     M W a cousin of the defendant. He   testified that on 9/6/2001 the deceased who is his  brother called him and 9 others.  During that meeting,   the deceased agreed to give the defendant one acre, J M agreed to give him ¼ an acre and  S M agreed to give him one acre making     a total of2 ¼ acres.

9.     DW4 Gabriel Koli is the Chairman of Sangalo clan of the Abatachoni sub tribe of the Luhya.  He testified that he  knew that when the defendant's father died, the   defendant was taken in by the deceased's father. The   deceased's father sold land belonging to the defendant in  order to raise fees for the deceased.  When the deceased      was employed, his father asked him to give land to the  defendant as he is the one who benefited when the  defendant's father's land was sold to raise school fees for him.  The deceased later gave the defendant one acre   but the plaintiff has refused to recognize that after the  death of her husband.

10.   It is clear from the evidence adduced by the defendant   and his witnesses that the same is not in agreement.Whereas the defendant claims that he is entitled to 2  acres from the deceased, the evidence of other witnesses is that he is entitled to one acre from the  deceased.  DW3 had testified that his brother, the   deceased gave the defendant one acre. Another acre was given to the defendant by Stephen Masafu and ¼ an acre     was given to him by J M.  This is said to have      happened on 9/6/2001.

11.   The defendant had taken a dispute to the Tribunal which  awarded him 5 acres.  The defendant filed a copy of the    Tribunal proceedings.  A look at the proceedings shows that the property in dispute was Ndivisi/Ndivisi/948.  The claimant in the dispute was J B Ki.  The objector was the defendant.  The Tribunal found that Plot No. Ndivisi/Ndivisi/948  belonged to the claimant J B K.The Tribunal ruled that the defendant should be given 5 acres out of Plot No. Ndivisi/Ndivisi/1497 registered in the name of M K.  This ruling was   given on 23/9/1996.

12.   The defendant had wanted land from Japhet Barasa   Kimingichi.  During the hearing, he testified at page 3 of    the proceedings that it was wrong for one to claim that Masafu (the deceased's father) had sold land belonging  to his father. The deceased's father was a witness during  the Tribunal proceedings.  He also wanted the defendant  to get a piece of land from J B K.  It is    therefore wrong for the defendant to turn round and claim that the deceased's father had told the deceased   to give the defendant land because he benefited from   the sale of land belonging to the defendant's father.

13.   The defendant had not lodged any claim for a share of   the deceased's father's land.  It is the Tribunal out of nowhere which decided that the defendant should be given 5 acres from L.R. No. Ndivisi/Ndivisi/1497 which   belonged to the deceased's father.  It is therefore clear  that the defendant's claim that he is entitled to 2 acres he is occupying does not have any basis.  The defendant  and his witnesses have not been candid.

14.   The defendant and his witnesses claim that the deceased's father was given 8 acres by his father.  There      is no evidence to confirm this.  The copy of title deed  produced by the plaintiff show that the suit land is 3. 12   hectares which is about 7. 6 acres.  The suit land is a   subdivision of L.R. No. Ndivisi/Ndivisi/1497 which  belonged to the deceased's father. It cannot therefore be      logical that the deceased's father's land was 8 acres.

15.   The defendant cannot claim a share of the suit land.  He  is not beneficiary of the estate of the deceased. His  occupation of the 1 ½ acres of the suit land is without      basis.

DETERMINATION

16.   I find that the plaintiff has proved her case against the    defendant on a balance of probabilities.  I order that the     defendant be evicted from the 1 ½ acres he is       occupying on the suit land.  The defendant is hereby   restrained by way of permanent injunction from   interfering with the suit land once he is evicted from the  suit land.  The defendant shall pay costs of this suit to  the plaintiff.

Dated, signed and delivered at Kitale on this 29th day of   September, 2015.

E. OBAGA

JUDGE

In the presence of M/s Munialo for Plaintiff and Defendant in person. Court Assistant –   Winnie

E. OBAGA

JUDGE

29/9/2015