Mary Nasambu Makanda v Dennis Wanyama [2017] KEHC 2841 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT AT BUNGOMA.

CIVIL APPEAL CASE NO. 2 OF 2016.

MARY NASAMBU MAKANDA……......…PLAINTIFF

VERSUS.

DENNIS WANYAMA……….…….….....DEFENDANT

JUDGMENT.

[1].The appellant in this case being aggrieved with the Judgment of the Hon. L.A. Olel (RM) delivered on 8/3/2016 in Bungoma CMCC No. 186 of 2013 filed this Appeal inter alia that the learned Magistrate failed to properly analyze and apply Sec. 26 of Act No. 3 of 2012, Sec. 120 of the Law of evidence Act Chapter 180 and provisions of Sec 25 read together with Section 28 of the Land Registration Act aforesaid.

Further that she erred in holding that the Appellant held land parcel

East/ Bukusu/South Kanduyi/5886 in trust for Dw3 a person who was not a party to the suit and finally that the learned magistrate failed to find that the appellant had proved her case on the balance of probabilities and that the Judgment failed to comply with the mandatory provisions of order 21(1) of the Civil Procedure Rules 2010.

[2].The respondent opposes the grounds of Appeal No. 1, 3, 4, 5, 6 & 7 and argues that there was no certificate of title that was produced and only certified copy of the Register was produced and that showed that there was a restriction on the land due to family dispute and that he never got a title after the registration of the Land in dispute.  It was further argued by the respondent that the appellant had distributed the parcels resultant from E. Bukusu/N. Kanduyi/2702 and was therefore estopped by Sec. 120 of the evidence Act Cap 80 Law of Kenya from demanding possession of the suit land.  The respondents argues that late delivery of Judgment in contravention of Order 21 rule 1 is not fatal unless there is a demonstration of hardship, irreparable loss and or injustice suffered by the appellants as a result thereof.  He argues that if there is any illegalities, the worst case scenario is to order a retrial and not to allow the appeal and/or order an eviction of the respondent.  He argues that the appeal has no merits and should be dismissed with costs to the respondents.

[3].In her Judgment the learned Resident Magistrate line 30 she stated;  “this court is therefore satisfied that the Plaintiff is the absolute proprietor of a suit parcel land as submitted by her counsel”

Page 2 line 11 she further states;

“There is no doubt from the evidence presented that the plaintiff is the registered owner of the SUIT Land and has indeed a copy of green card to support her case.  As the registered owner, she of course rested with full rights of proprietorship including the rights to exclusive possession in law”.

On page 17 she says those rights are contained in Section 25 as read with Section 28(b) of the Act Section 25 of Act No. 3 of 2012 sets out the rights of a proprietor,  the Act states;

(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to leases, charges and other encumbrances and conditions and restriction, if any, shown in the register and

(b) to such liabilities rights and interests as affect the same and are declared by Sec. 28 not to require nothing on the register, unless the contrary is expressed in the register.

(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

It is worth to note that those conditions on Sec. 28 that do not require noting in the register must be proved in Court by evidence if they are to be relied on.  The learned magistrate on page 12 of her Judgment states;

“I do hereby find that the plaintiff held the suit land in trust for DW3 who is the rightful beneficiary with overriding interests on the same and she is not entitled to eviction orders sought against the defendant.”

This finding is a contradiction to the magistrates finding that the appellant was the absolute proprietor of the suit parcel, and that she is the registered owner vested with full rights of proprietorship including the right to exclusive possession in law.

[4].I have perused the proceedings before the trial court, there is no evidence of trust placed before the court at all.  Trust is a question of fact that must be proved by evidence.  The cases quoted by the learned magistrate Obiero   Vs  Opiyo 1972 Ex 227 and Mbiu 2005 EA are not similar to the issues herein.  Facts in those cases were different and in my view those cases are not helpful herein.  They cannot be applied herein.  DW3 who is said to be a beneficiary of the suit land is not a party to the suit.  The doctrine of equitable estoppel relied on in this case has no application.  The learned Magistrate herself had found the appellant to be the registered proprietor of the suit with full rights to exclusivepossession under the Law.

The suit land was allegedly “sold” to the respondent by DW3 who was not a party to the suit and who did not file a counterclaim.  DW3 did not have title to the suit land.  He did not ask to join the suit.  Those facts were well within the respondents knowledge from the beginning.  He did a search in the lands office and found out that the land belonged to the DW3’s mother.  He was not a bona fide purchaser for value without any notice as to the registered owner.  The owners rights are protected by Law.  There is no dispute that the respondent entered the suit land without the permission, authority and or consent of the registered proprietor.  There was no consent of the Land Control Board.  He was living therein and constructing houses therein at his own peril.

A person who enters another persons land without the registered owners permission and/or authority is bound to be evicted.  The law cannot protect him.

I allow the appeal and enter Judgment in favour of the appellant in Bungoma CMCC No. 186 of 2015.  I order the eviction of the respondent from parcel Number East Bukusu/North Kanduyi/5886 with costs.  The respondent shall be granted 60 days to move and vacate from the suit land failing which he will be evicted therefrom with the help of the Court bailiff and he will be responsible for the eviction costs.

It is so ordered.

Judgment read in Open Court before the Counsels.

Dated at Bungoma this 3rd   day of October,2017.

S. MUKUNYA

JUDGE.

In the presence of:

Court Assistants:  Joy/Chemutai

Madam Wakoli for Bw’ Onchiri for the Applicants

Mr. Kassim for the Respondents