Mulupi (Subsituted with) Wakhisi v Mukhongo [2023] KEELC 889 (KLR)

Mulupi (Subsituted with) Wakhisi v Mukhongo (Civil Case 73 of 2006) [2023] KEELC 889 (KLR) (20 February 2023) (Judgment)

Neutral citation: [2023] KEELC 889 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Civil Case 73 of 2006

BN Olao, J

February 20, 2023

Between

Dismas Wakhisi Mulupi (Subsituted with) Chrispinus Chewa Wakhisi

Plaintiff

and

Julius Mukhongo

Defendant

Judgment

1. It is unfortunate that this dispute which was filed in 2006 long before my appointment as a Judge, has taken 17 years to be finalized. However, as will become clear from this judgment, this delay was largely caused by the parties themselves. They have taken various judges in circles requesting that the Land Registrar and Surveyor visit the disputed parcels of land and file their reports in the hope that a consent would be reached in this matter. Once the reports were filed, they would then turn around and dispute them.

2. On 30th May 2019, I decided that enough is enough and made the following directions:“Now that the surveyor has confirmed that this is not a boundary dispute, and instead of going round in circles sending Surveyors and Registrars to the suit land whose reports appear not to be solving any dispute I direct, with the concurrence of counsel, that this Court hears this dispute once and for all.Counsel inform me, surprisingly, that although this case has been pending for long, there has been no compliance with the provisions of Order 11 Civil Procedure Rules and they want to do so.”I therefore directed that the parties comply with the pre-trial directions and listed the hearing to commence on 6th November 2019 although it was not until 19th February 2020 that the plenary hearing commenced.

3. DISMAS WAKHISI MULUPI (the deceased herein but later substituted with his son CHRISPINUS CHEWA WAKHISI – plaintiff) moved to this Court vide his plaint dated 11th December 2006 and filed on the same day seeking judgment against JULIUS MUKHONGO LUKHUBI (the defendant) in the following terms with respect to the land parcels NO EAST BUKUSU/EAST SANGALO/1141, 1140, 966 (the suit land) as per paragraph 13 thereof:1. An order for the rectification of the original destroyed common boundary between land parcels NO EAST BUKUSU/EAST SANGALO/1141, 1140 and 966. 2.A permanent injunction restraining the defendant by himself, his servants and/or agents from encroaching, trespassing, interfering, dealing, fencing off, constructing on, occupying, cultivating or planting on the plaintiff’s land or in any other way interfering with the land parcel NO EAST BUKUSU/EAST SANGALO/1140 and from destroying the set boundary further.3. Costs.4. Any other relief this Honourable Court deems fit to grant.

4. The plaintiff’s case is that he is the registered proprietor of the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140 measuring 3. 96 Hectares while the defendant occupies and is the registered proprietor of the adjacent land parcels NO EAST BUKUSU/EAST SANG’ALO/1141 measuring 8 acres and EAST BUKUSU/EAST SANG’ALO/966 measuring 4. 81 Hectares. That there has always been a common boundary consisting of Eucalyptus trees, sisal and Euphobia between the said suit land placed by the District Land Surveyor BUNGOMA. However, on 10th January 2006, the defendant started interfering with the said boundary and encroached and trespassed onto the plaintiff’s land parcel NO EAST/BUKUSU/EAST SANG’ALO/1140. That the incident was reported to the Local Administration but the defendant has been difficult and in a bid to hide his activities, he made a false report to the Police leading to the arrest and charging of the plaintiff for the offence of trespass in BUNGOMA CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO 762 of 2006.

5. The deceased was previously acting in person and appears not to have recorded any statement when he filed this suit.

6. But his substitute as plaintiff CHRISPINUS CHEWA WAKHISI (PW1), SIFUNA NABANGI MALUPI (PW2), WILLIAM MASINDE WAKHISI (PW3) and CHRISTOPHER JUMA NYONGESA (PW4) all recorded statements dated 29th June 2019 and which were filed herein.

7. In his statement, the plaintiff confirmed that the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140 is registered in the names of his deceased father and is adjacent to the land parcels NO EAST BUKUSU/EAST SANG’ALO/1141, 1134 and 966 belonging to the defendant who purchased them from one JOHN OMONDI. That there is/are clear boundaries between land parcel NO EAST BUKUSU/EAST SANG’ALO/1141, 1140 and 966 but when the defendant purchased his land from JOHN OMONDI, he up-rooted the boundary between the land parcels NO EAST BUKUSU/EAST SANG’ALO/1141 and 1140 claiming it was his land. The dispute became the subject of Criminal charges against the deceased who was charged for trespass in BUNGOMA CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO 76 of 2006 but was acquitted in January 2011. That the disputed land has never been surveyed and since 2014, officers from the BUNGOMA COUNTY SURVEY OFFICE have visited the land but all have come up with different reports. One report by EMMANUEL NASONGO was to the effect that both the plaintiff and defendant had encroached onto each others land, while the report by one BRIAN MKUBWA was to the effect that the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140 and 1141 did not exist and so the boundaries could not be determined. The other surveyor one AMOS SIMIYU came up with a report which the plaintiff did not agree with. It is his case that since he was born, there have been clear boundary between the suit land which the defendant destroyed hence this suit.

8. In his statement, SIFUNA NABANGI MULUPI (PW2) states that the land parcel EAST BUKUSU/EAST SANG’ALO/1140 belongs to the deceased who was his uncle and that the neighbouring land belongs to the defendant who purchased it from one JOHN OMONDI. That in 1989, the said JOHN OMONDI and the deceased invited the surveyor who erected the boundaries between their respected parcels of land. However, in 2006, the defendant destroyed the boundary. The matter culminated in a criminal case against the plaintiff for trespass but he was acquitted. That the Land Registrar and County Surveyor have been visiting the land suit to determine the boundary but this has proved futile because each time they visit the land, they present contradicting reports.

9. On his part, WILLIAM MASINDE WAKHISI (PW4) who is the plaintiff’s brother stated that the dispute started in 2006 when the defendant started encroaching on the deceased’s parcel of land by cutting down the Eucalyptus trees forming the boundary. And although the matter was reported to the police, it was the plaintiff who was charged for trespass but was acquitted.

10. Thereafter, the surveyors made several visits to the suit land but have been unable to resolve the dispute. One surveyor by the name EMMANUEL NASONGO even made a report stating that the land parcels NO EAST BUKUSU/EAST SANG’ALO/1140 and 1141 did not exist. On 22nd May 2019, the Land Registrar and County Surveyor visited the land but their report was inconclusive. That the defendant has a history of evicting people including in the 1990s when he evicted one DOMINICO MATORE claiming that he had bought all the land.

11. The plaintiff’s last witness CHRISTOPHER JUMA NYONGESA (PW4) is a surveyor. He is in the class of expert witnesses and since his statement was brief, I shall reproduce it in extenso:“I am the surveyor herein. I know the plaintiff herein. When I carried out survey on land parcels NO L.R NO E. BUKUSU/E. SANG’ALO/966, LR NO E. BUKUSU/E. SANG’ALO/1140 and L.R NO E. BUKUSU/E. SANG’ALO/1141 on 22nd day of May 2019, I found that the Plaintiff and the Defendant occupies the above land parcel numbers in Sections. The Defendant herein occupies Section A and C i.e. 27 acres and the Plaintiff herein occupies Section B i.e. 3. 46 acres respectively.

Section C on the ground comes in because there was a boundary which was established by the County Surveyor.”

The plaintiff also filed the following documents as per his list dated 29th June 2019. 1.Title deed for the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140. 2.Green Cards for the land parcels NO EAST BUKUSU/EAST SANG’ALO/1140, 1141 and 966. 3.Report dated 11th September 2015 by E. B. NASONGO COUNTY SURVEYOR BUNGOMA.4. Report dated 2nd November 2012 by GEORGE O. ONGUTU LAND REGISTRAR BUNGOMA/MT. ELGON.5. Boundary Certificate.6. Report dated 9th October 2009 by GEORGE O. ONGUTU LAND REGISTRAR BUNGOMA/MT. ELGON.7. Report dated 18th January 2018 by CHRISTOPHER JUMA NYONGESA APPROVED ASSISTANT SURVEYOR.8. Report dated 29th May 2019 by SIMIYU W. AMOS COUNTY SURVEYOR.9. Maps10. Limited Grant of Letters of Administration issued to CHRISPINUS CHEWA WAKHISI in respect to the Estate of DISMAS WAKHISI MULUPI in BUNGOMA P&A CASE NO. 124 of 2014.

12. The defendant filed his defence in which he denied all the allegations levelled against him. He added that it was the plaintiff who had encroached onto his land and had even been charged with the offence of malicious damage to property and trespass. He added that the plaintiff is not entitled to the orders sought in his plaint. The defendant pleaded further that he would raise a Preliminary Objection that the suit be struck out for being totally defective and in contravention of the provisions of Section 21(4) the then Registered Land Act CAP 300 Laws of Kenya.

13. The defendant also filed his statement dated 20th June 2019 in which he confirmed that he is the proprietor of the land parcels NO EAST BUKUSU/EAST SANG’ALO/966 and 1141 having purchased both parcels from one JOHN BABYLON PIUS OMONDI in 2006. That as far back as August 1993, the said JOHN BABYLON PIUS OMONDI had been writing to the deceased asking him to stop interfering with the land parcel NO EAST BUKUSU/EAST SANG’ALO/966 since 1977 as shown in the several reports by the Land Registrar and County Surveyor.

14. The defendants filed as part of his evidence, the following documents:1. Defence.2. Replying affidavit.3. Ruling by W. KARANJA J (as she then was) dated 1st March 2007. 4.Chamber Application dated 23rd July 2007. 5.Chamber Application dated 9th October 2014. 6.Agreement in respect of L.R NO EAST BUKUSU/EAST SANG’ALO/966 and 1141 dated 16th September 1977. 7.Green Card for L.R NO EAST BUKUSU/EAST SANG’ALO/966. 8.Green Card for L.R. NO EAST BUKUSU/EAST SANG’ALO/1141. 9.Green Card for NO EAST BUKUSU/EAST SANG’ALO/1140. 10. Title Deed for L.R NO EAST BUKUSU/EAST SANG’ALO/966 dated 27th February 2006 in the name of the defendant.11. Title Deed for L.R NO EAST BUKUSU/EAST SANG’ALO/1141 dated 27th November 2006 in the name of the defendant.12. Repeat of NO 10 above.13. Title Deed for L.R NO EAST BUKUSU/EAST SANG’ALO/1140 in the name of DISMAS WAKHISI issued on 14th July 1975. 14. Title Deed for L.R NO EAST BUKUSU/EAST SANG’ALO/1141 in the name of JOHN BABYLON PIUS OMONDI.15. Letter addressed to DISMAS WAKHISI, by J. B. OMONDI dated 20th August 1993. 16. Certificate of Search in respect of L.R NO EAST BUKUSU/EAST SANG’ALO/1141 dated 9th March 2006. 17. Letter addressed to DISMAS WAKHISI by J.B. OMONDI dated 28th August 1993. 18. Letter from the DISTRICT COMMISSIONER addressed to the DISTRICT LAND SURVEYOR and REGISTRAR dated 29th September 1974. 19. Letter from the LANDS OFFICE addressed to the DISTRICT COMMISSIONER dated 24th July 1996. 20. Map.21. Replying Affidavit of the defendant.22. Proceedings in BUNGOMA CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO 762 of 2006 R.V. DISMAS WAKHISI MULUPI.23. Notice of determination of dispute dated 19th July 2006. 24. Ruling of MUKUNYA J dated 19th May 2016. 25. Ruling by MUKUNYA J dated 11th May 2016. 26. Order by the Deputy Registrar dated 8th July 2008. 27. Letter from the District Lands Office dated 22nd January 2009. 28. Order of SRM dated 10th July 2007. 29. Letter from the District Lands Office dated 17th September 2012. 30. Report from the Land Registrar dated 9th October 2009. 31. Building on plot No. 966. 32. Letter from the survey office dated 3rd September 2015. 33. Order of Court dated 6th December 2016. 34. Surveyor’s Report dated 11th September 2015. 35. Defendants Notice of Motion dated 3rd December 2016. 36. Order of Court dated 26th September 2017. 37. Letter from the County Surveyor dated 2nd January 2018. 38. Letter from the County Surveyor dated 5th February 2018. 39. Court order dated 15th November 2018. 40. Letter from the Land Registrar dated 13th May 2019. 41. Court order dated 9th May 2019. 42. Letter from Land Registrar dated 15th March 2019. 43. Repeat of 40 above.44. Letter from the Survey Department dated 24th April 2019. 45. Letter from the District Survey Office dated 29th May 2019.

15. The plenary hearing commenced on 19th February 2020 when the plaintiff testified and called as his witnesses SIFUNA NABANGI MALUPI (PW2), WILLIAM MASINDE WAKHISI (PW3) and CHRISTOPHER JUMA NYONGESA (PW4) who all adopted as their evidence the contents of their statements as summarized above. The plaintiff also produced his list of documents as his documentary evidence.

16. The defendant testified on 1st March 2022. He too adopted as his evidence the contents of his statement dated 20th June 2019 which I have already referred to in this judgment. He then produced the documents filed herein as per the list of documents dated 20th June 2019 as his documentary evidence.

17. Prior to testifying, the defendant had called as his witness AMOS WEKESA SIMIYU (DW1) the ASSISTANT DIRECTOR OF SURVEYS currently based in KAJIADO but previously working in BUNGOMA. Being an expert witness, he had not recorded any statement. He told the Court that following an order issued by this Court, he visited the land parcels NO EAST BUKUSU/EAST SANG’ALO/1140, 1141 and 966 in order to determine the boundaries. His findings were that it was the defendant herein whose land parcel NO EAST BUKUSU/EAST SANG’ALO/966 had been encroached upon by the proprietor of the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140 who is the plaintiff in this case. He prepared a report dated 29th May 2019 which had already been filed herein.

18. At the end of the plenary hearing, submissions were filed both by MR WERE instructed by the firm of WERE & COMPANY ADVOCATES for the plaintiff and by MS NANZUSHI instructed by the firm of LUCY NANZUSHI & COMPANY ADVOCATES for the defendant.

19. I have considered the evidence by both parties as well as the submissions by counsel.

20. Before I delve into the evidence and this Court’s determination, I must comment on the manner in which the defendant’s counsel filed her documents. Some documents were filed twice e.g. NOS 10 & 11 as well as NOS 40 & 43. While the Court is obliged to consider all the documents filed by the parties, it is unnecessary tedious and an extravagant use of the Court’s time having to go through the same documents twice or thrice as the case may be. Most importantly, however, counsel from the defendant also took the liberty to file, as part of the defendant’s documents, rulings of other judges delivered in these proceedings as well as orders of the Deputy Registrar. That was not really necessary because those rulings and orders already from part of the record herein and the Court will no doubt peruse them in the course of drafting this judgment.

21. It is not in dispute that the parties are neighbours and share a boundary. The plaintiff’s case is that the defendant has interfered with their common boundary and encroached into his land. He seeks rectification of the boundary and an order injuncting the defendant from interfering with his land. The defendant’s case is that infact it is the plaintiff who has encroached onto his land and is not entitled to the orders sought.

22. At the commencement of this judgment, I mentioned how the parties have taken this Court in circles by referring their dispute to the Land Registrar and Surveyor but end up disputing reports filed. Some of the reports filed have infact been inconclusive. As the party alleging interference with their common boundary, the burden was on the plaintiff to prove that allegation. Sections 107 and 109 of the Evidence Act provide that:107 (1):“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”(2):“When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”109:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The fact that several reports have been filed but have been inconclusive was confirmed by the plaintiff himself when he was cross-examined by MS NANZUSHI counsel for the defendant. And in his submissions, MR WERE states as follows in page 1:“This case has a long winding history. Several Land Registrars and County Surveyors have visited the land severally in an attempt to unveil the mystery of the situation on the ground vis a vis the records in land Register and the official land map. The court record has a plethora of Court orders directing surveys to be done and the subsequent reports; all the reports are contradicting each other.”At the end of his submissions, MR WERE makes the following proposal in the final paragraph:

“PROPOSALa.If a deed (agreement) can be provided to clarify the acreages for the survey and demarcation exercise to be done with an ease.b.The mutation forms for parcel of land E. BUKUSU/E. SANG’ALO/1140 and E. BUKUSU/E. SANG’ALO/1141 be provided from legal offices to facilitate the survey.c.And if at all it is parcels E. BUKUSU/E. SANG’ALO/1400 and E. BUKUSU/E. SANG’ALO/1401 then mutation forms be provided to facilitate the same. We pray that you find that the plaintiff has proved his case on a preponderance of probability and allow the claim as prayed.”This Court is not inclined to take the route proposed by the plaintiff for two reasons. Firstly, what is proposed has been going on between the parties from as far back as 8th July 2008 when MBOGHOLI J (as he then was) recorded a consent order between the parties in the following terms:“By consent, the District Land Registrar and District Surveyor do visit the disputed land namely EAST BUKUSU/EAST SANG’ALO/1141, 1140 and 966 with a view to determining the boundaries and thereafter prepare a report and file the same in Court within 60 days hereof.Further mention on 8/10/2008. M. MBOGHOLI J”The proposal suggested by MR WERE will take us back to the route we have walked since 2008 some 15 years ago. I am not prepared to do that taking into account the “plethora of Court orders,” as counsel has confirmed, which took the same path. 23. Secondly, to do so would amount to an un-warranted intrusion into the jurisdiction of the Land Registrar under Section 20 of the Land Registration Act. In any event, when the COUNTY SURVEYOR MR SIMIYU W. AMOS attended this Court on 30th May 2019 at the request of MR WERE, he said the following on oath:“I confirm that the dispute is not a boundary dispute. The boundaries to the suit land were fixed long ago and it is the plaintiff who has gone into the defendant’s land.”Even as subsequent Judges continued to accommodate the parties, on 22nd July 2015 and in the presence of MR MURUNGA then acting for the plaintiff and MS NANZUSHI for the defendant, the following consent order was recorded before MUKUNYA J:1:“By consent, the County Surveyor to visit the suit lands and point out the beacons of L.R NO EAST BUKUSU/EAST SANG’ALO/1140 and EAST BUKUSU/EAST SANG’ALO/966 and 1141. 2:Both parties to share the cost of the surveyor.3:Surveyor’s report to be filed within 60 days. Mention on 30/6/2015. MUKUNJA J22/7/2015. ”A report was subsequently filed by E. B. NASONGO the County Surveyor Bungoma dated 11th September 2015. However, nothing turned on that report, as the surveyor put it:“... due to the sons of the plaintiff turning rowdy, unruly, obstructive, hindering and threatening to assault me, the surveyor and my team making it impossible to complete the exercise.”Indeed it was due to these un-ending shenanigans that this Court made a decision to hear this case especially following the assurance of MR SIMIYU W. AMOS that it had nothing to do with a boundary dispute. And of all the Surveyors and Land Registrars involved in this exercise, only him and CHRISTOPHER JUMA NYONGESA (PW4) were called to testify. In his testimony on behalf of the plaintiff, (PW4) adopted as his evidence the statement dated 29th June 2019 and which I have already referred to above in extenso. As is clear from that statement, there is nothing in it about the need for any rectification nor anything to suggest that the defendant has encroached into the plaintiff’s land. He simply confirms what portions of land each of the parties occupy and goes on to finish by saying that “... there was a boundary which was established by the County Surveyor.”

24. On his part, AMOS WEKESA SIMIYU (DW1), and who testified as the defendant’s witness, produced his report dated 29th May 2019 and prepared pursuant to a court order dated 15th November 2018. In that report, he makes the following findings:“CONCLUSION AND RULINGThe boundary as exists is largely correct. It is to be adopted as marked by a drainage canal that runs from the road towards the river.The contentious area presently cultivated by the applicant’s family is encompassed wholesomely within the defendant’s parcel number 966. If at all the applicants want to lay a claim to the disputed area shaded in the sketch, he should do so by filing a land claim case and not through a boundary dispute.Attached is the sketch map showing the disputed boundary with the shaded part being the area in contention.SIMIYU W. AMOSCOUNTY SURVEYOR.”And when he testified before this Court on 24th February 2022, he said in his evidence in chief that:“From my observations and findings, I found that the defendant JULIUS MUKHONGO herein and who is the owner of parcel NO EAST BUKUSU/EAST SANG’ALO/966 is the one whose land was being encroached upon by the owner of the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140 who is CHRISPINUS CHEWA WAKHISI. The finding is in my report which I signed accordingly.”In the course of cross-examining this witness, MR WERE tried to suggest that the report ought to have been prepared by the Land Registrar. In response to that cross-examination, the witness said:“The Court ordered me and the Land Registrar to visit the land. I was the COUNTY SURVEYOR BUNGOMA at that time and I was accompanied by the LAND REGISTRARY REMMY NGANYI. He took part in the exercise. He did not prepare the report but he was present when I did the exercise so he took part. He did not sign the report. We all work independently. The Court ordered me to survey the land and that is what I did.”In his submissions on this issue, counsel for the plaintiff has poured cold water on that report and said:“However, that did not happen as only the COUNTY SURVEYOR filed his report while the LAND REGISTRAR who too was on the ground gave the proceedings a wide berth. The report of the LAND REGISTRAR was mandatory not only because it was pursuant to a Court order but because the problem went beyond the mere surveying that was the subject of the COUNTY SURVEYOR. The input of the LAND REGISTRAR was necessary.”My view of the matter is that even though the LAND REGISTRAR did not sign this report, it is clear from the evidence of AMOS WEKESA SIMIYU (DW1) that the two did carry out this exercise together. In any event, if the plaintiff thought that the in-put of the LAND REGISTRAR was ignored, nothing stopped him (plaintiff) from summoning him as his witness during the trial since the onus was always on him to rebut the evidence of the COUNTY SURVEYOR as contained in that report. Further, the report dated 29th May 2019 was produced without objection during the trial. And as is clear from the report:“The boundary as exists is largely correct. It is to be adopted as marked by a drainage canal that runs from the road towards the river.”In the circumstances, there is really no basis for this Court to issue “an order for the rectification of the original destroyed common boundary” as sought by the plaintiff. The term “rectification of boundaries” is defined in BLACK’S LAW DICTIONARY 10TH EDITION as:“An action to determine or correct the boundaries between two adjoining pieces of land.”In the CONCISE OXFORD ENGLISH DICTIONARY, the term rectify is defined as:“Put right; correct or convert.”Finally, if there was any need for rectification of any boundaries, that would be a jurisdiction of the office or authority responsible for survey of land and not this court. Sections 16 and 19 of the Land Registration Act are clear on that. This Court is only empowered under Section 80 of the same Act to rectify the register by cancelling or amending any “registration” that may have been obtained through fraud or mistake. The plaintiff has not sought the rectification of any register in terms of the above provision.

25. And with regard to the prayer for an order or permanent injunction restraining the defendant from interfering with the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140, it is clear from the evidence herein that it is the plaintiff, rather than the defendant, who has encroached into the land parcels NO EAST BUKUSU/EAST SANG’ALO/966. When the original plaintiff DISMAS WAKHISI MULUPI first moved to this Court on 11th December 2006 seeking an injunction to restrain the defendant from interfering with the land parcel NO EAST BUKUSU/EAST SANG’ALO/1140, WANJIRU J (as she then was) dismissed it vide her ruling delivered on 1st March 2007. The defendant has now been vindicated.

26. The up-shot of all the above is that having considered the plaintiff’s suit, I find it devoid of any merit. The same is hereby dismissed with costs.

BOAZ N. OLAOJUDGE20TH FEBRUARY 2023Judgment dated, signed and delivered at BUSIA by way of electronic mail on this 20thday of February 2023 with notice to the parties. Right of Appeal.BOAZ N. OLAOJUDGE20THFEBRUARY 2023