Peter Elima Nyukuri & David Nyongesa Wamalwa v Leonard Kingasia Omochar, Kennedy Simiyu Sitoko, Protus Simiyu Munialo, Andrew Boaz Juma, Mourice Tabalia& Patrick Njoginda [2019] KEELC 353 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 160 OF 2015

PETER ELIMA NYUKURI.................................1ST PLAINTIFF

DAVID NYONGESA WAMALWA.....................2ND PLAINTIFF

VERSUS

LEONARD KINGASIA OMOCHAR............1ST DEFENDANT

KENNEDY SIMIYU SITOKO.......................2ND DEFENDANT

PROTUS SIMIYU MUNIALO......................3RD DEFENDANT

ANDREW BOAZ JUMA.................................4TH DEFENDANT

MOURICE TABALIA....................................5TH DEFENDANT

PATRICK NJOGINDA...................................6TH DEFENDANT

JUDGMENT

1. By a plaint dated 31/12/2015 and filed in court on 31/12/2015, the plaintiffs sought the following orders against the defendants:-

(1) That the defendants be ordered to surrender 4. 3 acres from the land LR No. 8994/30 and 8994/29 according to their shares which they paid for.

(2) Costs of this suit.

2. On 30/10/2018 when this matter come up for hearing none of the parties was present and the matter was dismissed. The plaintiffs filed an application dated 21/11/2019 for reinstatement of the suit. Ruling was delivered on 28/2/2019 and the matter was reinstated. The court heard the main suit on 16/10/2019 and 6/11/2019. The suit was not opposed.

3. The suit came up for hearing on 16/10/2019. PW1 Peter Nyukuri Elina, the 1st plaintiff gave evidence. PW2, David Nyongesa Wamalwa testified on the same date. Thereafter, the plaintiffs’ case was closed.

The Plaintiffs’ Case

4. According to the plaint and the evidence of the plaintiffs the plaintiffs’ group merged with the defendants group, both being land buying groups or associations on an equal shares basis; that the defendants sold the plaintiffs portion of land and rendered the plaintiffs landless; that the defendants subdivided the suit lands LR 8994/30andLR 8994/29 and sold some of the lands to non-members and denied the plaintiffs their rightful share.

5. According to the evidence of PW1, he and others had entered into joint partnership agreement called Tembelela Self Help Group. He produced a copy of the agreement (P. Exhibit 1). Thereafter Tembelela Self Help Group joined hands in a partnership with another association calling itself Mukhuyu Farmers Self Help Group who were already in the process of purchasing the suit land. After the merger, the whole group retained the name “Mukhuyu”. Tembelela paid Kshs.340,000/= to Mukhuyu; Kshs. 200,000/= of this money was transmitted to Mark Simiyu Kisembe the owner of the land to be purchased. PW1 produced the original receipt dated 28/4/1997 as P. Exhibit 2. The plaintiffs further paid Kshs.16,000/= to Mukhuyu in two instalments on 10/6/1997 and 3/1/1998.

6. According to PW1 the purpose of the amalgamation of the Tembelela and Mukhuyu was to buy land; before the merger, the Mukhuyu group had paid a deposit for the land owned by Mark Simiyu Kisembe, the seller but had failed to complete the payment. Mukhuyu had earlier agreed with Kisembe that they would buy Kisembe’s 91 acres for Kshs.3,700,000/= in 1997. The members of Mukhuyu had paid Kshs. 3,171,450/= to Kisembe. After the Tembelela - Mukhuyu union occurred and Kisembe was paid Kshs.200,000/= he allowed them to take possession of the land. The balance was Kshs.156,000/=. Later on, after the group worked the land, 802 (90kg) bags of maize were harvested from the 41 acres and sold for Kshs. 855. 03/= per bag thus realizing Kshs. 685,950. 60, Kshs. 500,000/= of that amount was obtained in November, 1997 from the maize sale proceeds and paid to Mark Simuyu Kisembe. The witness did not know what happened to the balance of the maize sale proceeds which he estimated to be Kshs.185,000/=.

7. According to PW1 the officials of Mukhuyu conducted all the agricultural activities and they kept the former Tembelela group members in the dark concerning those operations.

8. Tembelela members paid survey fees Kshs. 2,700/=to Mukhuyu and survey work was done but in their absence. After the survey the Tembelela members were directed to certain portions which did not match the sums they had paid.

9. That was not all in 2012 PW1’s land was excised and the parcel so excised given to one Andrew Situma. His land which was supposed to be 1. 8 acres was reduced to 0. 8 acres. Andrew got 0. 2 acres from the 0. 8 acres. All this time title deeds had not been issued for the land.

10. PW1 had also bought 0. 5 acres from a member of Mukhuyu one Peter Wekesa Wakhungu. From that 0. 5 acres the Mukhuyu official excised 0. 1 acre and gave it to Patrick Joginda. Mukhuyu members also threatened him and he fled from the farm and he now lives away from his portions. He averred that the title deeds were issued yet no government surveyors came to the land to survey it. He produced the farm produce record P. Exhibit 3, area list of Mukhuyu members P. Exhibit 4. He testified that Tembelela was comprised of six persons, two of whom are deceased and that the six persons added to Mukhuyu membership gave the combined number of 45 members. He produced copy of the agreement dated 30/9/2009 as P. Exhibit 5. According to PW1 the 2nd plaintiff had paid Kshs.101,000/=. The whole of the Tembelela group had contributed a total of Kshs.356,000/=.

11. PW2 testified that he was chairman of the Tembelela group which he united with the Mukhuyu group and took possession of the land purchased by the union. When the land was finally distributed the six Tembelela members found that they had received less land than they were entitled to and began complaining. When they complained to the CID they were told to await a survey; then in 2012 the Mukhuyu group leaders began selling the land. They complained to the Chief who sent them to the District Officer who sent them to the CID again who sent to Haki Na Amani Organization which did not help them hence this suit.

12. According to him Tembelela members were threatened and so they fled the suit land and came to court to seek justice. According to him Tembelela members are entitled to 4. 3 acres out of the purchased land as that is the equivalent of their monetary contribution towards the purchase of the suit land. PW2 testified that he was allocated 1. 4 acres instead of 3. 2 acres. PW2 produced P. Exhibit 6, a copy of an agreement dated 27/10/1997, the witness testified that the dispute was unsuccessfully dealt with by Risper Arunga, Advocate when she summoned the Chairman of Mukhuyu to her office vide her letter P. Exhibit 7 dated (6/1/1998). From P. Exhibit 8 it can be seen that the CID requested the District Officer to resolve the issue. P. Exhibit 9(a)and(b) show that the plaintiffs applied for registration of caveat over the land. The crop assessment report [P. Exhibit 14 (a)] dated 20/11/2012 was produced by PW2 to show that his crops were damaged at the orders of a Mr. Andrew Boaz Juma which name matches that of 4th defendant herein.

13. This court ordered the plaintiffs to provide searches to show the current status of LR Nos. 8994/30and8994/29 and their subdivisions if any. The 1st plaintiff provided a search P. Exhibit 15 [Kiminini/Matunda Block 24 (Mukhuyu)/4measuring 0. 39 Ha in the name of Peter Elima Nyukuri], P. Exhibit 16 [Kiminini/Matunda Block 24 (Mukhuyu)/30 measuring 0. 16 Ha in the name of Peter Wekesa Wakhungu] and P. Exhibit 18 in respect of [Kiminini/Matunda Block 24 (Mukhuyu)/83 measuring 0. 52 Ha in the name of Joseph Wamalwa Nyongesa].

14. PW1 also produced a map (P. Exhibit 17 for Mukhuyu farm). From that map it is apparent that the same has been subdivided into about 109 portions of different sizes; some of them appear many times larger than others. He asked this court to issue orders to those who would be found to be in illegal occupation of his land to vacate. He prays for damages.

15. The defendants never filed any memorandum of appearance or defence despite being served with summons and plaint and other documents on 8/12/2017 as evidenced by the affidavit of service sworn by one Patrick Simiyusworn on 21/12/2017.

Determination

16. I have considered the evidence on record as given by the plaintiffs. That evidence was not controverted by the defendants who did not come to court to show that the plaintiff’s claim is not genuine. It is my view that the defendants ought to have attended court to give evidence and dispute the allegation that the plaintiffs were shortchanged after the two groups merged; as they did not, the only evidence on record shows that the whole of the Tembelela group had contributed a total of Kshs.356,000/=and that all the land to be purchased measured 91 acres. Simple mathematical calculations put the average cost one acre under the said transaction as Kshs. 40,659. 30/=.If parties were to be allocated land purely on the basis of the funds they helped raise at the time of the purchase, then the plaintiffs’ group having paid Kshs. 356,000/=was therefore entitled to approximately 8. 75 acres under the transaction.

17. In their evidence the plaintiffs have demonstrated that they have exhausted all the administrative machinery they could appeal to for the resolution of the dispute but it was not resolved. The land they claim is held by the defendants.

18. This court finds that the plaintiffs’ claim has merit; the plaintiffs have established their claim on a balance of probabilities against the defendants.

CONCLUSION

19. I therefore enter judgment in favour of the plaintiffs against the defendants jointly and severally and I grant prayers No. (1) and (2) in the plaint dated 31/12/2015.

It is so ordered.

Dated, signed and delivered at Kitale on this 5th day of December, 2019.

MWANGI NJOROGE

JUDGE

5/12/2019

Coram:

Before - Mwangi Njoroge, Judge

Court Assistant - Picoty

Plaintiffs in person present

Defendants absent

COURT

Judgment read in open court at 2. 45 p.m.

MWANGI NJOROGE

JUDGE

5/12/2019.