Peter Okiring Sausau v Charles Onguna Etiankoro & Ettang Okamiu [2015] KEHC 5975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

ELC. NO. 34 OF 2013

PETER OKIRING SAUSAU...............................PLAINTIFF

VERSUS

CHARLES ONGUNA ETIANKORO.........1ST DEFENDANT

JOSEPH ETTANG OKAMIU...................2ND DEFENDANT

J U D G M E N T

PETER OKIRING SAUSAU, hereinafter  referred  to as the Plaintiff, filed  the plaint dated  24th July, 2013 against CHARLES  ONGURA ETIAKORO  and JOSEPH  ETTANG  OKAMIU, hereinafter  referred to as the 1st and 2nd Defendant respectively  for the following prayers:

‘’    a) Permanent injunction restraining them (Defendants)either  by themselves, employees, or any other person from interfering  with the Plaintiff’s land parcel L.R.N. Teso/Kocholia/397.

b)  Eviction of the 1st and 2nd Defendant from the Plaintiff’s land parcel L.R.N. Teso/Kocholia/397.

c)  Costs.’’

The plaintiff averred that the Defendants had in January, 2013 entered into the said land  without  his authority and ‘’ cut down mature trees, cut mature grass and dug trenches  and planted food crops therein  and intend to put up structures on the Plaintiff’s above stated land.’’

The  Defendants  denied the Plaintiff’s claim and filed a joint statement of defence  dated 12th June, 2013. The Defendants disputed that the Plaintiff is the registered proprietor of  the suit land and aver that the land had been sold by one Charles Ikepet Sausau at Kshs.510,000/=  under a written agreement with 1st Defendant’s wife and therefore all rights vests in the Defendants.

During  the hearing, the Plaintiff testified  as PW 1 and was represented by Mr. Elungata advocate. The Defendants were represented  by Mr. Wangila  advocate.  The 1st and 2nd  Defendants  testified  as DW 1 and DW 3  respectively, and called one Charles Ipeket  Sausau, who testified  as DW 2.

PLAINTIFF’S CASE.

1. That he  is the registered proprietor  of the suit land, North Teso/Kocholia/397 on first registration.  The copy of the register and official search of the suit land in the Plaintiff’s  list of documents shows that the land was registered in the names  of Sausau 22nd January, 1974.

2. That  one Charles Ipeket, who testified  as DW 2,  filed Amagoro Land Disputes  Tribunal  case No. 6 of 2011 against the Plaintiff over  the suit land, North Teso/Kocholia/397. The tribunal award was in favour of Charles Ipeket and was in the following words;

‘’  This  court awards to Mr. Charles  Ipeket Sausau the land which was allocated to Mr. Ejakait Sausau as heir. Which Peter Okiring grabbed and joined with his to register parcel number North Teso/Kocholia/397.

The District Land Registrar is asked to facilitate  survey, curving land on the east of  the parcel  No. North Teso/Kocholia/397 from the northern part of Land registration. North Teso/Kocholia/790 marking its ends to run towards the hills as indicated in the sketch map after taking  measurements, then issue  each with a title deed.’’

The award was adopted as the judgment of the court on 16th December, 2011 in Busia  CM. Land Dispute Case No. 123 of 2011.

3. That the Plaintiff was not satisfied with the award and filed  Busia H.C. Judicial Review No. 5 of 2012 in which Kimaru J,  held;

‘’……….the award of Amagoro Land Disputes Tribunal was ultra vives its jurisdiction. The  award was made without jurisdiction. The proceedings leading to the award were null and void ab initio.  The Judicial Review order craved for by the Applicant is granted. The Amagoro Land Disputes Tribunal  is prohibited  from hearing any dispute  relating the title  of land held by the Applicant. Similarly too, the Busia Chief Magistrate’s  court is prohibited from executing or giving legal  effect to the said award of the Amagoro Land Disputes Tribunal.’’

That the Defendants  entered into the suit land in 2012  and cut down trees  and grass and the Plaintiff reported  to the National Environment  Management Authority (NEMA)  and Ministry  of Agriculture. The  Plaintiff added that the Defendants started cultivating  on the suit land in January, 2013 and  that the judgment  in the Busia H.C. Judicial  Review  Case number 5 of 2012  was delivered  on 14th August, 2013.

DEFENDANTS’ CASE,

1. That  Angela Nafula, who is wife to DW 1, entered  into a land sale agreement with one Charles Ipeket  Sausau, dated 11th February, 2012  over  the sale  of  undisclosed parcel of land at Kshs.370,000/= . The  1st Defendant  said his wife had worked briefly  on the land she had bought before stopping but denied  that he had personally encroached  onto  the Plaintiff’s land.

2. That the land the wife of 1st Defendant  was buying was to come from the subdivision of North Teso/Kocholia/397. That the vendor had given the 1st Defendant  and his wife the death certificate  of the  uncle whose name he could not recall,  the grant in respect  of the administration of  vendor’s uncle’s estate and the mutation forms in respect of the suit land.  That after the 1st Defendant’s  wife  cultivated on the land for one year, she stopped and it was taken over by the Plaintiff.

3. That the portion of land the 1st Defendant’s wife was buying  is yet to be transferred to her as the documentation processes are not complete.

4. That after the Amagoro Land Disputes Tribunal award, DW 2 planted  the boundary marking his 5 hectares of the suit land but the Plaintiff uprooted it. He then had the suit land subdivided into parcels  North Teso/Kocholia/3489 and 3488 for himself and plaintiff respectively.  DW 2  said that he had then sold a portion of his parcel to Nafula and 2nd Defendant (DW 3) but after  the High court ruling of 14th August, 2013, he  stopped transactions relating to the said  land.  DW 2  said nobody from his family has ever used the suit land but confirmed that the plaintiff and his family are  the ones using it.

ISSUES FOR DETERMINATION.

1. Whether  the plaintiff is the registered proprietor  of the suit land, North Teso/Kocholia/397.

2. Whether  the Defendants  had acquired legal rights over the suit land following the sale agreements with DW 2  that entitles them to use the land.

3. Whether  the Defendants have entered into the said land, caused acts of waste and cultivated on it and if so whether  their acts amounts to trespass.

4. Whether  the prayers sought should be issued.

ANALYSIS OF THE EVIDENCE.

1. That  from the documentary evidence including copies of the register and certificate  of official search for Land parcel North Teso/Kocholia/397, the  plaintiff herein is the registered  proprietor. His registration as ownerof the suit land is a first registration. The provision of section 27  and 28 of the Registered Land Act, Chapter  300  of Laws of Kenya (Repealed)  outlines the interests  and rights of a registered proprietor as follows;

‘’27.  Subject  to this Act –

a. the registration of a person  as the proprietor of land shall vest in that person the absolute ownership of that land together with all  rights  and privileges belonging or appurtenant thereto;

b. ……………………………………………………..

28.  The rights  of a proprietor,  whether acquired on first registration or whether  acquired  subsequently  for  valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances  belonging  thereto, free from all other interests and claims whatsoever, but subject ;-

a. ……………………………..

b. …………………………….

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.’’

The  above provisions have been retained in the Land Registration  Act  No. 3  of 2012  under sections 24 and 25 in more or less the same words.

2. That in view  of the finding  in (1) above, and the High Court  decision in Busia judicial review  case No. 5 of 2012,  reversing the finding of Amagoro Land Disputes Tribunal decision in respect of the suit land, Charles Ipeket Sausau has  never owned or been registered  as a proprietor of land parcel North Teso/Kocholia/397. The said  Charles Ipeket Sausau  therefore  had no capacity to grant the Defendants herein or any of their relatives or persons claiming under them any legal right to the suit land or any portion thereof.

3. That the  1st Defendant  conceded he had gone to the suit land when he said during cross-examination that,

‘’The land  my wife bought  is five kilometers from where l  was born. I have visited that land.’’

The 1st Defendant  further stated that; ‘’My  wife farmed on the land she bought for one year only. She  had planted maize crops ………..’’

When the 2nd Defendant  testified, he stated as follows; ‘’ I bought a portion of landfrom DW 2.   have not built on the land l bought from DW 2 but have been   cultivating.’’

The testimonies of the two Defendants confirms  the  plaintiff’s  claim that  they have themselves  and or  through others, entered into the suit land without his consent.  The fact that the Defendants admitted that they, their spouses or agents are cultivating  portions of the suit land makes the court conclude that in the process of clearing  the land for cultivation, some of the vegetation that was growing was removed, also  without the Plaintiff’s consent.  Even though  the Defendants and or their spouses or agents may have believed that  they had acquired legal rights over the land through the sale agreement entered with DW 2, the position of the law is that DW 2 had no capacity to sell any portion of the suit property and  could therefore not grant  or pass any legal rights over the suit land to the Defendants or anybody else.

CONCLUSION.

1. That the title  of the Plaintiff to the suit land  has not been  challenged successfully in accordance  with the Law and he remains the registered  proprietor of the suit land, parcel North Teso/Kocholia/397.

2. That the High Court  decision of 14th  August, 2013  in Busia Judicial Review No. 5 of 2012, declaring the Amagoro  Land Disputes  Tribunal  proceedings and award a nullity  ab initio  among other orders,  has also not  been challenged in accordance with the law and whatever legal rights may have appeared to have been conferred to any party  under the tribunal  award over  the suit land does not exist.

3. That the Plaintiff has established his case against both Defendants  on a balance of probabilities and the court enters judgment for him and against the Defendants in terms  of prayers 12 (a)  and (b)  with costs.  In furtherance to the order in prayer 12 (b) any Defendant and or their agents who may as of now be on the suit land without the Plaintiff’s  authority  is directed to vacate   within sixty (60) days  failure to which  eviction order will issue and be forcefully evicted at their costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …19th DAY OF MARCH, 2015.

IN THE PRESENCE OF;     PRESENT…………………………PLAINTIFF

PRESENT…………………………………..1ST DEFENDANT

PRESENT…………………………………..2ND DEFENDANT

MR. KWEYU FOR MURUNGA  FOR DEFENDANTS.