Nobert Makwara Opiyo v Chairman, Esegero Roman Catholic Church,Secretary Esegero Roman Catholic Church & Esegero Roman Catholic Church [2014] KEHC 5063 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC.  NO. 22 OF 2013.

NOBERT  MAKWARA OPIYO…………………………................................................PLAINTIFF

=VERSUS=

1.  THE CHAIRMAN, ESEGERO  ROMAN CATHOLIC CHURCH.:::::::::::::: 1ST  DEFENDNT

2.  THE SECRETARY ESEGERO  ROMAN CATHOLIC CHURCH:::::::::::::2ND DEFENDANT

3.  ESEGERO  ROMAN CATHOLIC  CHURCH::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT.

J U D G M E N T.

The Plaintiff, Nobert Makwara Opiyo, filed this suit against the Chairman, Esegero Roman Catholic Church, the Secretary, Esegero Roman Catholic Church  and Esegero Roman Catholic Church, hereinafter referred to as 1st to 3rd Defendant for;

‘’ a)     an order of injunction and eviction against Defendants, their agent, their servants and or any other person (claiming) under them from LR. NO.Bukhayo/Kisoko/2593.

b)     Costs of  this suit.

c)     Any other relief this honourable court deems fit to grant.’’

The Plaintiff avers that he is the registered owner of the suit land and that the Defendants entered onto the land and constructed a building without authority.

The Plaintiff’s  claim is denied by the Defendants  through their filed statement of defence.  The Defendants  disputes  that the  plaintiff is the registered  owner of Bukhayo/Kisoko/2693. They further  aver that if the Plaintiff is the registered  owner of the suit land,  then he obtained  the registration through fraud and set out the particulars  of fraud in paragraph 3 of the defence summarized as follows:

Registering the land into his names while he knew the Defendant had bought it and have been using it for 30 years.

Filing a Succession Cause  for his father’s  estate without notifying the Defendants.

Taking advantage of the surveyor’s mistake who transferred to the Defendants parcel Bukhayo/Kisoko/2394 instead of the suit land.

The Defendants further avers that the Plaintiff’s title to the suit land, if any, has been extinguished by dint of their uninterrupted occupation of the suit land for over 30 years. Further, that the Plaintiff claim is statute barred.

The Plaintiff testified as PW 1 and adopted his evidence affidavit of 6th May, 2013  to which is annexed  a copy of the title deed for Bukhayo/Kisoko/2693 and certificate of official search for the same land showing that the Plaintiff  got registered  as proprietor  of the land on 21st July, 2011.  In cross-examination by the Defendants’ counsel , the  Plaintiff said  he was born in 1977 and that  his father, Makoli Yoyo, died in 1992.  He said his father  was the  owner  of  land  parcels Bukhayo/Kisoko/2387 and 2389.  That  his family lives on parcel Bukhayo/Kisoko/2387 which is separated from Esegero Primary School  by one parcel of land.  He added that parcel  Bukhayo/Kisoko/2389 was  subdivided into parcels  2693 and 2694  with the latter being registered in the names of the 3rd Defendant and the former remaining in his  father’s names until after  he inherited it through a Succession cause.  He  said the Defendants  built a church house on land parcel 2693 instead  of parcel 2694  which is their land after the death of his father.  He confirmed  that the subdivision of Bukhayo/Kisoko/2389  and the transfer  of parcel 2694  to the 3rd Defendant  was done when his father was alive.  He also stated that the church house was built in 1992.  He said  he followed the due process in filing the Succession Cause  in respect of his father’s estate.   He  said his father had  told him he had sold  1 ½  acres of land to the 3rd Defendant which was parcel 2694.  He said he could not have claimed  the land earlier as he was young but in 1999  the 3rd Defendant had offered to buy parcel 2693 from him but the negotiations did not materialize.

In support of the defence case, the Defendants called four witnesses. The first was Inyasi Onditi Hasakii who testified as DW 1. He said he is the Chairman of Esegero Catholic Church and was aware that in 1981 the church bought land from Plaintiff’s father from parcel Bukhayo/Kisoko/2389 for Kshs.17,000/=. That the land parcel 2389 was subsequently subdivided in 1991 and the church issued with its title deed in 1992. That the portion  that was to be transferred to the church was parcel 2693,  but due to a mistake by the surveyor, parcel 2694 was transferred instead.  That parcel  2694 had been  donated to Esegero Primary school by the Plaintiff’s  father.  He added  that Plaintiff  and the church members had attempted to discuss a settlement but could not agree to the Plaintiff’s  demand of Kshs.1,300. 000/=.  Answering  a   question  DW 1  stated that  the church had bought only one acre of land which was supposed to be parcel 2693  but got  registered with parcel 2694 which  was 1 ½  acres in size.  He added  that he  had no documentary  evidence  to confirm  that Plaintiff’s father had given Esegero Primary school  parcel 2694. He also  said Esegero Primary school has never asked  that parcel 2694  be  transferred to it.

The  second witness was Desterio Wanzala who testified as DW 2. He said he was among the church members  who signed the agreement between the church and Plaintiff’s father under  which the church bought one acre  on 16. 3.1981. He identified  a copy of the agreement  as the first one in the list of documents filed by the Defendants.  He said after  paying for the land, they put up a church house on it when  the plaintiff’s father was alive. The land was also surveyed during the life time of the seller of the land.  He added that, he is aware people from the area had donated land to build Esegero Primary school in the 1970’s and that the school land is different from that of the church land and is marked with  a physical boundary. During cross –examination, DW 2 said that the land that was to be transferred to the church was parcel 2693 but parcel 2694 was transferred to it erroneously.  He said he did not know of the error until 2011 when plaintiff claimed parcel 2693. He added that Esegero Primary school has never asked the church to transfer parcel 2694 to it.

The third witness was Alois Angulo Oroni who said he is the Catechist at Esegero Catholic church since 1988 and previously a choir member.   He said the church bought land from Plaintiff’s father in 1981  and constructed a church house in 1987.  He said the Plaintiff’s father subdivided the land from which the church was buying a portion but erroneously transferred parcel 2694 instead of parcel 2693 to the church.  He said the church house had been built on the parcel 2693 and not parcel 2694 which is used as a playground by Esegero primary school. He said they had not known of the error until plaintiff claimed he was  the  owner of parcel 2693.

The last witness for the Defendants was  Gilbert Ondari Ondigo, the Land Registrar , Busia  who told the court that  record  held in his office indicates parcel Bukhayo/Kisoko/548 belonging  to Opiyo Makoli  was on  27. 11. 1990  closed upon subdivision  to parcels  2387, 2388  and  2389. He  added that parcel  2389  was subsequently subdivided into parcel 2693  and 2694  and the register closed on 23. 11. 1992. He also  informed the court that parcel Bukhayo/Kisoko/2693 was on  21st June, 2011  registered  in the names of Nobert Makwara Opiyo ( the Plaintiff)  after inheriting it vide  succession Cause  number  89 of 2010  and that  parcel 2694 was registered in the names of Esegero Roman Catholic  church on 24. 11. 1992.

The  Plaintiff filed  written submission restating  the evidence  adduced and asking the court to order that he be paid Kshs.1,300,000/= by the  Defendants  as mesne damages  for the  period  they have used land parcel Bukhayo/Kisoko/2693 and costs.

The Defendants’ counsel also filed written submissions pointing out that the Plaintiff did not in pleadings and evidence disclose the date the defendants invaded his land. Counsel further submitted that the portion of land the 3rd Defendant bought was 0. 4 hectares and was meant to be Bukhayo/Kisoko/2693 but parcel Bukhayo/Kisoko/2694 was transferred  to the church erroneously. He prays that the Plaintiff be ordered  to transfer land parcel Bukhayo/Kisoko/2693  to the church and that each party  be ordered to bear its/his own costs.

The court  finds that the following issues need to be determined in this case.

Whether or not the Defendants unlawfully and without authority  entered onto  land parcel Bukhayo/Kisoko/2693 and if so, when?

Whether  or not there was a land sale agreement  between the 3rd Defendant and the Plaintiff’s father.

If the answer  to (b)  above is in the affirmative, what  parcel of land the 3rd Defendant  was entitled to between Bukhayo/Kisoko/2693 and 2694.

Whether  or not there was an error in the process  of transferring the portion 3rd Defendant  bought from Plaintiff’s  father  and if so the party to blame.

If the  answer  to (d)  above is in the affirmative, whether  this court has the power to issue orders to correct the error.

Whether Plaintiff is entitled to the orders sought.

The court has carefully considered the pleadings herein, the evidence adduced by both the Plaintiff and Defendants and submissions filed by the parties and find as follows:

That the evidence adduced by the Defendants, including  the sale agreement of 16. 3.1981  and the confirmation by the plaintiff in his testimony shows that the 3rd Defendant  bought  one acre of land from parcel number  2389 at Kshs.17,000/=.  The seller of the land was Opiyo Mokoli Yoyo who is the father of the Plaintiff.

That the 3rd Defendant took possession of the portion of land they bought and constructed a church house during the lifetime of the Plaintiff’s father.   Though the Plaintiff’s claim the  church house was built  in 1992, the Defendants offered overwhelming  evidence that the church house was constructed in 1987.

That the Plaintiff’s father had land parcel Bukhayo/Kisoko/2389, from which 3rd Defendant had bought one acre, subdivided into two parcels being 2693 and 2694 measuring  0. 4  and 0. 6  hectares respectively in 1992. The copies of the mutation form attached to the Defendants list of documents shows the  subdivision was registered on 23. 11. 1992 and that  the surveyor  had picked the already  demarcated  boundary confirming Defendants  claim that they had taken possession of the portion 3rd Defendant  had bought long before the subdivision.

That  the 3rd Defendant’s   church house was in the portion registered  as Bukhayo/Kisoko/2693 which was one acre in size.

That by  mistake  or error attributed to the surveyor, the Plaintiff’s  father transferred  to the 3rd Defendant parcel  Bukhayo/Kisoko/2694 instead  of parcel Bukhayo/Kisoko/2693 where the church house was situated on 23. 11. 1992.

That the Defendants did not know of the mistake in (5)  above until in the your 2011  when the Plaintiff lodged a claim for parcel lBukhayo/Kisoko/2693 after inheriting  the land through a Succession Cause.

That the  Defendants  did not avail evidence to prove that the Plaintiff engaged in  fraudulent process in filing the Succession Cause in respect of his father’s estate through  which he inherited  land parcel Bukhayo/Kisoko/2693.

That none of the parties herein has taken any steps to correct the error or mistake that  led to the  3rd Defendant being registered with parcel  Bukhayo/Kisoko/2694  instead of Bukhayo/Kisoko/2693  where the church house  was built.  Had this  been done  when the Plaintiff’s father  was alive, then  the Plaintiff would have filed a Succession Cause in respect  of parcel Bukhayo/Kisoko/2694 and not 2693.

That the 3rd Defendant  took possession of the one acre from Bukhayo/Kisoko/2389 which they bought from Plaintiff father and built a church house on it with the consent of the seller.  By that time the Plaintiff, who had been born in 1977 was  a minor. The 3rd Defendant  has continued to use the one acre to date and  until  year 2011 believed the title  transferred  to its  name was for that portion. The  Defendants therefore never needed the Plaintiff’s consent  to enter into the land as they had the consent and authority of his father to take possession under the sale  agreement  of 16. 3.1981.

10.    That the  prayer sought by Plaintiff against  Defendants in paragraph  10 (a) of the plaint cannot  be issued against  the Defendants under  the circumstances of this case.

11.   That even though the plaintiff has not prayed for parcel Bukhayo/Kisoko/2694 to be transferred to him in exchange of parcel Bukhayo/Kisoko/2693, l am of the considered view that this court is  under Article 159 of the Constitution,  Section  19 (1) of  the Environment  and Land  Court  Act and Section 1B (i) of the Civil Procedure Act under duty  to ensure;

That  justice is administered without undue regard to procedural technicalities.

That justice  shall not be delayed but expedited.

That the  proceedings are disposed at  affordable  costs.

12.    That in view of the court’s duty as set out in (11)  above and so as to ensure both parties  in this matter gets  justice without undue delay and without subjecting them  to additional costs, it is desirable  that the court issues orders that will enable the 3rd  Defendant  to be registered  with the parcel they bought  and  where the church house is situated.  Likewise, it  is also necessary to issue orders to ensure the Plaintiff,  as the heir of the Opiyo Makoli Yoyo, gets  registered with the parcel  that was erroneously registered in the names of the 3rd Defendant.

From the foregoing, the court finds that the Plaintiff  has failed to prove that the  Defendants are  unlawfully occupying Land  parcel Bukhayo/Kisoko/2693  and therefore prayer  10(a) in the plaint  cannot issue. However  so as to correct the mistake, and or error that  was occasioned on 23. 11. 1992 and so as to ensure that the parties  are registered with the correct parcels of the land subdivided from Bukhayo/Kisoko/2389, the court orders as follows;

That the Plaintiff herein transfers land parcel Bukhayo/Kisoko/2693 to the 3rd Defendant.

That the 3rd Defendant transfer land parcel Bukhayo/Kisoko/2694 to the plaintiff.

That each party bears his/it’s own costs.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED IN OPEN COURT  ON 21ST  DAY OF MAY, 2014.

IN THE PRESENCE OF;

JUDGE.