Mathias Ondiro Ogama v Pascal Ngira Olouchi [2014] KEHC 6232 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 27 OF 2012.

MATHIAS  ONDIRO OGAMA……………………………….PLAINTIFF

VERSUS

PASCAL NGIRA OLOUCHI………………………… …….DEFENDANT.

J U D G M E N T.

MATHIAS ONDIRA OGAMA, the  Plaintiff, filed this suit as the Administrator  Ad litem of the estate of Agabet Ogama Onkiambo, against  Pascal Ngira Oluochi, the  Defendant, for:

Injunction  restraining  the Defendant from disposing or dealing in any manner with  the said land and/or certificate  of title.

An order  to rectify the Land Register by removing the name of the Defendant  and inserting the name of the deceased, Agabet Ogama Ojiambo.

Costs  of this suit and interest.

The  Plaintiff suit is based on fraud attributed to the  Defendant’s  father, namely Oluochi Ngira now deceased, in the way he acquired  registration as owner of Land parcel Samia/L.Bukhungu/116 which belonged to Agabet Ogama Onkiambo. The defendant got the land by transmission following the death of his father.

The claim is denied by the Defendant.  He disputes that Land parcel Samia/Bukhulungu/116 belonged to Agabet Ogoma Onkiambo  at any time.  Defendant avers that he is the bona fide owner of the land in question and cannot be injuncted  and adds that the prayers sought are bad in law and cannot be effected.

Mr. Juma  and Okutta advocates appeared for the plaintiff and Defendant respectively.

Plaintiff testified as PW 1 . He said he is a son of Agabet Ogama Ojiambo who died on 07. 07. 2004 and live with his family and mother on Land parcel Samia/Luchululo Bukhulungu/116 which  he knew belonged to his father until recently when he learnt from National Irrigation Board  Personnel that the land was registered in the Defendant’s  names.  He  lodged a complaint with the Chief and in the presence of National Irrigation Board Personnel, the Defendant  denied any interest on the said land.  This allowed the Board  to release the payment for the portion of the land they had taken.  Plaintiff said he then conducted a search with the Land Office and it confirmed the land in question was registered in the Defendant’s name.  He also obtained a copy of the adjudication record for the land which showed the land parcel 116 had been registered in the names of his father which had then been cancelled and the names of Defendant’s father inserted.  Plaintiff  produced a  copy of proceedings  before the special District  Commissioner, Busia in Ministers’ Appeal case number 34 of 1974 which  was heard on 10th April, 1986. The proceedings shows that the Special District Commissioner allowed the appeal and awarded the disputed land to Agabet Ogama, father to the plaintiff.  A copy of the sketch plan showing the disputed portion of land and some of the neighbouring parcels,  shows the disputed land was part of land parcel 116 that belonged to Agabet Ogama while parcel 119  belonged to Oluochi Ngira, father to the Defendant.  He  said after the Special District Commissioner’s ruling they had taken over the disputed land and have been using the whole of parcel 116.

Defendant testified as DW1 and adopted his evidence affidavit sworn on 4. 10. 2013.  He said land parcel Samia/Luchululo/Bukhulungu/116 belonged to his father who died in 1989 after which he filed Nairobi P & A Succession Cause No. 96 of 1994, through which he got registered as the owner of the said land.  He denied giving plaintiff authority to sell a portion of parcel 116 to the National Irrigation Board.  He said he had learnt plaintiff had been paid Kshs.360,000/= as  first instalment for a portion of land.  He said plaintiff had also been paid a second instalment of an amount he could not establish. That when he learnt a third instalment was to be paid he filed an objection with the National Irrigation Board as parcel 116 was his.  He said after inheriting land parcel 116 he found some people living on it and he informed them that the land was his.  He said he had filed a Succession Cause for only parcel 116 even though his deceased’s father owned several parcels, but denied he did so to fraudulently obtain the land.

He conceded having been called by the chief after National Irrigation Board found the land plaintiff lived on was registered in his (Defendant’s ) names.  He denied authorizing the transaction between the National Irrigation Board and plaintiff.  He conceded he was present when plaintiff received the first payment from National Irrigation Board for sale of a portion of the land.

ISSUES FOR DETERMINATION.

To whom Land parcel Samia/Luchululo/Bukhulungu/116 was allocated to after land adjudication.

Whether  the registration of  Oluochi Ngira, father  to Defendant  as proprietor of  Land parcel  Samia/Luchululo/Bukhulungu was through fraud and or misrepresentation.

Whether  the Defendant  obtained good title  to Land parcel Samia/Luchululo/Bukhulungu/116 when he  got registered as the proprietor following the death of his father Oluochi Ngira.

Whether the plaintiff is entitled  to any of the orders sought in the Plaint.

FINDINGS.

That the fathers to the Plaintiff and Defendant were relatives. This  is discerned from  the proceedings before the Special District Commissioner in Minister’s  Land Appeal Case number 345 of 1974 in which Agabet Ogama was the Appellant and Oluochi Ngira  the Respondent. The appeal brought to a closure  the adjudication dispute between the two parties by confirming  that  Agabet Ogama was the rightful owner of land parcel Samia/Luchululo/Bukhulungu/116 and that the disputed portion marked on the sketch map was part of that land.

That the copy of adjudication record clearly shows land parcel Samia/Luchululo/Bukhulungu/116 was initially registered in the names  of Agabet Ogama.  It shows the chairman signed the adjudication record on 16. 8.1971 while the Executive Officer signed it on 4. 12. 1970. Then Agabet Ogama’s  name was crossed out and above it the name Oluochi Ngira inserted as the owner of the land. There is a signature and a date of 19. 4.1972 which signifies the date the alteration was made. The alteration in the  adjudication record must have occurred following the Arbitration  Boards decision in favour of Oluochi Ngira which  he referred to when he testified before the Special District Commissioner  in Minister’s Land Appeal case number 34 of 1974.

That by  the time the Minister’s Land appeal case  number 34 of 1974  was decided  on 16. 4.1986, Oluochi Ngira had been registered as the proprietor of land parcel  Samia/Luchululo/Bukhulungu/116 on the strength of the Arbitration Boards decision in his favour.  This  notwithstanding  Agabet Ogama had continued  to occupy the land parcel Samia/Luchululo/Bukhulungu/116 except  the disputed  portion  which is shaded on the sketch plan attached to the proceedings before the  Special District Commissioner.

That it  follows that  the register for land parcel Samia/Luchululo/Bukhulungu/116 was not amended to reflect the decision of 16. 4.1986 in Minister’s  Land Appeal Case number 34 of 1974 which effectively recognized  Agabet Ogama as the proprietor of the land and that the portion in dispute which  is shaded on the sketch plan attached, was part of that land.

That Agabet  Ogama continued occupying land parcel Samia/Luchululo/Bukhulungu/116 including  the portion in dispute until his death in 2004 leaving  his family members, including the plaintiff on the land.   Strangely Oluochi Ngira, though registered as the owner of the land parcel Samia/Luchululo/Bukhulungu/116, never attempted to assert the rights of an owner over the land during his life time until he died in 1989.  In view  of the decision in Minister’s Land  Appeal case number 34 of 1974 the land in question belonged to Agabet  Ogama and not  Oluoch Ngira and therefore  Oluochi Ngira’s title  to that land was worthless.  He had no interest on that land capable of being transmitted to his son, the Defendant through Busia Succession Cause  number 96 of 1991.  (Though Defendant  had claimed the Succession Cause  had been filed in Nairobi, the copy of the  Certificate of Confirmation he attached to his evidence affidavit  sworn on 4. 10. 2013 had been signed by one Maloba ,Senior Resident Magistrate, Busia).  Just like his father, the  Defendant never asserted any rights of a land owner over the land even after being registered as the proprietor. Agabet Ogama  and his family continued in occupation of the land and  for all intent  and purposes behaved as the owners of the land.  It is no wonder plaintiff  engaged the National Irrigation Board when they wanted a portion of the land and it was during that transaction he discovered  the tile to Samia/Luchululo/Bukhulungu/116 was in Defendant’s names. The  Defendant was summoned by the Chief and in his presence some payment for the land was released to the plaintiff.  If indeed the Defendant believed he was the owner of the land, he would not have remained quiet when the plaintiff and the National Irrigation Board  were entering into an agreement over portion of land. Though he denied giving his no objection to the transaction, the fact that he was present when Kshs360,000/= was paid  to plaintiff under the agreement shows  the opposite. The court can only conclude that he knew he had no good title to the land even though it was in his name.

That even though Oluochi Ngira may not have fraudulently registered land parcel Samia/Luchululo/Bukhulungu/116 in his names, as he  possibly did so following the Arbitration Boards decision, any  claim he  may have had over that land ended on 16. 4.1986 following  the decision  in Minister’s  Land Appeal case number 34 of 1974.  It follows, however that when  Defendant  included that land as part of his father’s estate in Busia Succession Case No.96 of 1991, he knew or ought to have known the land was not part of his father’s  estate. The transaction through which Defendant acquired the registration of Samia/Luchululo/Bukhulungu/116 into his names was tainted with fraud  and misrepresentation attributable  to the Defendant and he therefore never acquired  good title to that land.  The  Land should  have been registered in the names of Agabet  Ogama Ojiambo after 16. 4.1986 following the decision in Minister’s Land appeal case number 34 of 1974. It is never late to do justice and justice requires that the Minister’s Appeal  case decision be given effect by rectifying  the register  of Land parcel  Samia/Luchululo/Bukhulungu/116 by cancelling  or deleting the names of Oluochi Ngira and substituting it with  the name of Agabet  Ogama  Ojiambo as the proprietor.  All the other entries  on the register  including those of Pascal Ngira Oluochi as proprietor should also  be deleted.

Having  found as above, the court enters judgment for the plaintiff against  the Defendant and orders as follows:

That  the Land Registrar, Busia  County, is hereby directed to rectify the register of Land parcel Samia/Luchululo/Bukhulungu/116 by deleting  all the entries  thereon and inserting the names of Agabet Ogama Ojiambo, now deceased as the first registered proprietor in accordance with the decision of 16. 4.1986 in Minister’s  Land Appeal case number 34 of 1974.

That the Defendant will pay the plaintiff the costs of this case.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 26TH DAY OF  MARCH, 2014.

IN THE PRESENCE OF;

JUDGE.