Paschalis Williams Makokha v Gregory Makokha Kundu & John Oduor Ogutu [2015] KEHC 5984 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA.

AT BUSIA

ELC. NO. 30 OF 2014.

PASCHALIS WILLIAMS MAKOKHA…………….....…………..PLAINTIFF

VERSUS

1.  GREGORY MAKOKHA KUNDU

2.  JOHN ODUOR OGUTU………………………………….DEFENDANTS.

J U D G M E N T.

PASCALIS WILLIAM MAKOKHA,hereinafter referred to as the Plaintiff, commenced his claim against GREGORY MAKOKHA KUNDU and JOHN ODUOR OGUTU, hereinafter referred to through the amended originating summons dated 8th August, 2013.  The Plaintiff’s claim is based on adverse possession and seeks to be registered as proprietor of land Bukhayo/KISOKO/7467 for having been in open and notorious possession of the suit land for a period exceeding 12 years.

The claim is denied by the Defendants through their replying affidavits sworn on 21st September, 2012 and 19th November, 2013 by the 1st and 2nd Defendants respectively.

The Plaintiff testified as PW 1 and called James Noah Mambeli, Reuben Wesonga Oduma and Enos Oruko Ongangi who testified as PW 2, PW 3 and PW 4 respectively.

The 1st Defendant testified as  DW 1 and called Wycliffe OKOTH Kafwa, Servas Bruno and Mary Adhiambo Walumbe who testified as DW 2, DW 3 and DW 4 respectively.  The 2nd Defendant  testified  as DW 5.

PLAINTIFFS CASE.

That the Plaintiff  entered onto  the suit land on 1st March, 2000 when one Christopher  Walumbe  Kafwa  sold him a portion of 3 acres from Bukhayo/Kisoko/3301 at Kshs.120,000/=. The  sale agreement indicated  the purchaser as Mourice Obilo who is the Plaintiff’s son.  That the portion the Plaintiff bought was demarcated on the ground and he took immediate  possession and planted  sugarcane either in his own names or the names of his other son James Noah Mambeli (PW 2).

That  the Plaintiff  has been using the suit land  openly, peacefully continuously and without any interruption from anybody else for a period exceeding  12 years. That  at the time of the sale agreement, the vendor had not  obtained  the title to the land and therefore the parcel reference was not indicated in the agreement.  That the land was later ascertained as Bukhayo/Kisoko/7467 which Plaintiff discovered had been registered in the  names of 1st Defendant on 5th May, 2011 and title issued on 6th May, 2011.

That Plaintiff took possession of the suit land in March, 2000 and planted  sugarcane  which he was  processing privately until 2004. That in 2004, the Plaintiff  planted food crops on the land and in 2007 he allowed his son, PW 2, to plant sugarcane  and that he (PW 2) used the land until 2012 when they learnt somebody else had bought the land through  Mumias SOM.CC.NO. 387 of 2011. That  the said Mumias  Court case  had been filed by 1st Defendant and DW 4  against PW 2 and Mumias sugar company Limited. The Plaintiff added  that by the time the final orders were issued in Mumias SPM CC.No. 387 of 2011 on the 15th June, 2012, he  had been in possession of the  suit land for over 12 years and had filed this suit.

That the Plaintiff  came on the suit land was not under any contract and when PW 2  planted his sugarcane in 2007 he entered into a new contract with Mumias sugar company limited. That PW 2  had by  2011 harvested sugarcane from the suit land three times and did not use it after that as the 1st Defendant  took over the cane thereafter. PW 2 also conceded that he paid the 1st Defendant  Kshs.32,000/= as ordered  in Mumias SPM.CC. No. 387 of 2011.

That Plaintiff had given PW 3 casual work on his sugarcane land from 2000 to 2003 on the suit land.  According to PW 3, the Plaintiff did not use the suit land after 2003 as the land had been bought by somebody else.  PW 4  also testified  that he had worked for the Plaintiff on the suit land between 2000 and 2003.

DEFENDANTS’ CASE.

That on 11th June, 2010,  1st6 Defendant purchased 3. 5 acres of Bukhayo/Kisoko/3301 from Mary Adhiambo Walumbe at Kshs.402,000/= which he paid fully. That the said Mary Adhiambo Walumbe who testified as DW 4, filed  Busia H.C. No. Succession  Cause No. 161 of 2010 and was  appointed the administratrix  of the estate of Christopher Walumbe Kafwa, who was the registered proprietor of Bukhayo/Kisoko/3301. That the Succession  court confirmed the grant and 1st Defendant was given 3. 5 acres from Bukhayo/Kisoko/3301 which portion after subdivision was registered as Bukhayo/Kisoko/7467 and title issued on 6th May, 2011.

That the  1st Defendant took possession of the land he found PW 2  had planted  sugarcane there and filed Mumias  SPM.CC.No. 367 of 2011. That PW 2  and himself had an  out of court settlement in which the sugarcane contract was transferred to the 1st Defendant  in addition to being paid Kshs.32,000/= by PW 2. A consent to that effect  was adopted by the court and an order dated 15th June, 2012  issued. That the 1st Defendant later sold the  suit land to the 2nd Defendant.

That according to DW 2, the Plaintiff had given Kshs.19,000/= to Christopher in 2000 when the later was unwell.  However, after the death of Christopher, the  family met and agreed to give Plaintiff and acre of land with the third sugarcane crop which he harvested only ones.  The land remained farrow until 2006 when Plaintiff planted sugarcane and used it until 2011, when DW 4 took it over. Both  DW 2 and DW 3 denied  having been witnesses in the sale agreement between Plaintiff and Christopher  and said the only purchaser they know of in 2000 was one John Muhambe and the purchase price he had paid was refunded by Christopher family.

That DW 4 was a daughter to Christopher Walumbe Kafwa  who died  in 2000  when she was only 10 years old.  That DW 4  did not know of any land sale agreement  between her deceased father and the Plaintiff. She  confirmed  selling 3. 5 acres of the land to DW 1.

10.  The 2nd Defendant confirming buying the suit land from DW 1 and  said he took possession in 2013.  He said  as the sugarcane on the land had been harvested three times, he ploughed  the whole land       and built a  farm house.

ISSUES FOR DETERMINATION.

11. .

When the Plaintiff started using the suit land, and  if so when his occupation became adverse for purposes of  time starting to run.

Whether the Plaintiff has been in adverse occupation for more than 12 years.

Whether the Plaintiff’s occupation of the suit land was ever interrupted.

Whether the Plaintiff is entitled to the orders sought.

ANALYSIS OF THE EVIDENCE.

12. .   That  though the Plaintiff claim is that he took possession of the suit land in March, 2000, the land was then part of Bukhayo/Kisoko/3301. The suit land got registered as Bukhayo/Kisoko/7467 following the subdivision based on the distribution of the estate following the issuance of the certificate of confirmation of a grant dated 16th March, 2011 in Busia H.C Succession Cause No. 161 of 2010. It  is however clear  that the portion the Plaintiff claims is the same portion  PW 2 `was farming sugarcane on.  It is also the same portion 1st Defendant  and DW 4  subsequently sued PW 2  over and which 1st  Defendant   sold to the 2nd Defendant.

13.    That though  the Plaintiff claims that he continued to be in possession of the suit land either directly or through his son, PW 2, and was  still in possession when he commenced these proceedings, the evidence  adduced shows otherwise. The Plaintiff’s two witnesses who testified as PW 3 and PW 4 said that the Plaintiff used the land only between  the year 2000 and 2003. The evidence adduced by DW 2 shows that  the Plaintiff only used the one acre of land in 2000 for the period it took him to harvest the third harvest. Thereafter the land remained farrow until 2006 when Plaintiff planted the sugarcane again.  The   two witnesses called by Plaintiff seem to confirm the testimony of DW 2 that there was a break after the time he harvested the third cane up to 2006.  This clearly shows that a period of 12 years could not have passed between 2000 when Plaintiff took possession to   the time he harvested the third cane. The Plaintiff’s second  entry onto the suit land  was in 2006 and again by the time he filed this suit on 5th June, 2012, only a period of 6 (six) years had passed.

14.    That even though the Plaintiff claim is not  based  on contract, it is   clear from the evidence  adduced by PW 1, PW 2 , PW 4 and DW2  and DW 4  that the first  time the Plaintiff took possession of the suit  land was  with permission of the then registered owner  of the suit land and his family. That period  cannot be counted for purposes of   counting the time that had passed  in favour to the Plaintiff for           adverse possession (See Kiptanui –A- Vhumba –vs- Kibor A. Kolil[2014]eKLR.

15.    That the Plaintiff’s  possession of the suit land ended in 2011as confirmed by PW 2 who was in actual physical possession.  PW 2 stated that after harvesting the third sugarcane harvest in 2011, he  did not got back to the land again.  He was consequently sued in Mumias SPM.CC. No. 367 of 2011 whose order of 15th June, 2012  formalized his exit. This  clearly  means that had the Plaintiff’s possession of the suit land from 2007 had been through, PW 2,  then  that possession ended in 2011 and it is  erroneous  of the Plaintiff to claim  he had been in adverse possession of the suit land. (see Virginia  Wanjiku  Mwangi –vs- David  Mwangi [2013]eKLR.

16.    That having found as above, the court further finds that the     Plaintiff claim against both Defendants fails and his suit is dismissed  with costs.

It is so ordered.

S. M. KIBUNJA.

JUDGE.

DATED AND DELIVERED AT BUSIA  ON  19TH DAY  OF MARCH, 2015.

IN THE PRESENCE OF…PRESENT………………………….PLAINTIFF

…  PRESENT ……………………1ST DEFENDANT

…  PRESENT …….……………..2ND DEFENDANT

JUDGE.