Pius Ouma Wanga v Sylvester Odhiambo Wanga [2015] KEHC 6837 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL APPEAL NO. 84 OF 2011.

PIUS OUMA WANGA ………………………………  APPELLANT

=VERSUS=

SYLVESTER ODHIAMBO WANGA………………  RESPONDENT.

(An appeal from the decision of the Western Provincial  Land Disputes Appeals Tribunal  in Land Disputes Appeal No. 42  of 2011 read on 17/10/2011)

J U D G M E N T.

PIUS  OUMA, hereinafter  referred to as the Appellant, being dissatisfied  with the decision of the Western  Provincial  Land Disputes Appeal Committee of 17th November, 2011  in land  Disputes   Appeal No. 40  of 2011, preferred this appeal  through the memorandum of appeal dated 14th December, 2011 setting out of five  grounds. The grounds  are as follows:

’’  1.     That the Western Provincial Land Disputes Appeals Tribunal erred in law in   failing to note and rule that the suit land was registered on 8/10/1967 in the  name of Wanga Sieunda who died on 11/3/1987 and that the respondent’s  claim before the Butula Division Land Disputes Tribunal was instituted  out of  time and was statute-barred and it ought to have allowed the appellant’s appeal before it and proceeded to dismiss the respondent’s claim as filed before the tribunal.

That the Western Provincial Land Disputes Appeals Tribunal erred in law  in rejecting the appellant’s appeal  yet the Butula Division Land Disputes Tribunal had erred by purporting to arbitrate over the issue of succession and apportionment  of the estate of the deceased Wanga Sieunda, the father of parties hereto, which issue was not within its jurisdiction and when succession proceedings were yet to be instituted in respect of the estate of the said deceased.

The composition of the Western Province land Disputes Appeals Tribunal was improper and unlawful and its proceedings and ruling and or orders  were irregular, illegal, incompetent and of no legal efficacy.

The Western  Province Land Disputes Appeals Tribunal erred in upholding the verdict of the Butula Division  Land Disputes Tribunal when the proceedings and verdict of both the latter tribunal and the appeals committee were both a nullity, ultra vires, incompetent , null and void ab initioand ought  not  be allowed to stand.

The Western  Provincial Land Disputes Appeals Tribunal failed to analyse the issues before it lawfully, critically, wholly or properly  and its  decision and that of the  tribunal were evidently pre-determined, based, and  indefensible and were arrived at in a cursory and perfunctory manner and have occasioned a serious miscarriage of justice.’’

The Appellant prays for the appeal to be allowed with costs by setting aside the orders in Bulula Land Disputes Tribunal in respect of Marach/Elukongo/1316.

The record of appeal was served on Sylvester Odhiambo  Wanga, hereinafter  referred to as the Respondent, who appointed M/S. Namatsi  & company advocates  to represent him. M/S.  Akwala  & co. Advocates  appeared  for the Appellant.

The parties counsel appeared before the Deputy Registrar on 22nd October, 2014 and recorded a consent that the parties file written submission. The Appellant’s counsel filed their written submission dated 4th November, 2014 on the 6th November. The counsel for the Respondent  filed their written submissions dated 5th November also  on 6th November, 2014.

SUMMARY  OF APPELLANT’S SUBMISSIONS.

That  Respondent’s claim for a resubdivision  of land parcel Marchi/Elukongo/1316, before the Butula  Land Disputes  Tribunal,  was filed  42 years after the land was registered  after  adjudication on 8th October, 1967. As no leave to extend  time was obtained, counsel submitted that the suit was statute barred, incompetent and un maintainable and that the Appeals Committee ought  to have allowed the Appellants appeal  and dismissed the Respondent’s claim.

That the suit land was registered in the names of the late Wanga Sieunda and therefore the tribunal had no jurisdiction  to deal  with the dispute before it as that  was the preserve  of a succession Court.

That  the Western Provincial  Land Dispute Appeals Committee   that heard the Appellant’s  appeal was improperly constituted as it had five members instead  of three  contrary to sections 8 (5)  and 9 (2)  of the Land Disputes  Tribunal Act (Repealed). The counsel submitted that this rendered the proceedings and verdict of the Appeal Committee a nullity, unlawful and or illegal and should not be allowed to stand.

SUMMARY OF RESPONDENT’S SUBMISSIONS.

That  the fact relating to the time the suit land got registered is  irrelevant as it was only discovered  recently.

That the Butula  Land Disputes  Tribunal only  recommended the method  of sharing  the land among the six sons of the deceased  and therefore the Appeal’s  Committee was fair in dismissing the appeal.   The counsel submitted that the tribunal did not apportion the estate.

That the issue of the Appeal’s Committee composition was not raised by the Appellant during the hearing of the appeal even though he was present.  The counsel  submitted that the  Respondent  had no say in the composition of the Appeal’s  Committee and that justice should be done without undue  regard to technicalities as required under Article 159 (2)  (d)  of the Constitution.

That as the suit land was ancestral property and the tribunal’s conclusion was that it be shared equally among the brothers,  the tribunal  had acted within its jurisdiction and the decision was therefore competent and in conformity with the law.  The counsel  submitted that the appeal should be dismissed with costs.

This being a second appeal, this court is only obliged to deal with issues of law as provided under section 8 (9) of the Land Disputes  Tribunal Act,  now repealed, which  stated as follows;

‘’   Either  party to the appeal may appeal from the decision  of the Appeals   Committee to the High Court on a point of law within sixty days from the   date of the decision complained of;

Provided that no appeal shall be admitted for hearing by the High   court unless  a judge of that court has certified that an issue of law   (other  than customary law) is involved.

BACKGROUND,

The  parties  to this appeal are sons to the late Wanga Sieunda who died in 1987.  The said deceased had three wives namely, Angelina Nduri, Maria Achieno and Alice Nekesa. He also owned land parcel Marachi/Elukongo/1316.

That the late Wanga  had six sons  namely, Silvester Odhiambo Wanga,  Jacob Bwire, Johnstone Okello, Pius  Ouma, Jackton  Queen and Charles Odhiambo.

That before  his death, the late Wanga shared the suit land among  the houses of  his three  wives and appointed a son from each of the three houses to be in charge of the portion for that   house.

That the Respondent  herein has not been given a specific portion of the suit land and after failing to get a solution through  the elders efforts, filed  a claim  with the Butula Land Disputes  Tribunal  on 12th January, 2009 (See copy of the proceeding in the record of appeal)  The Tribunal , after  hearing  verbal evidence made the following order on 9th February, 2009;

‘’      Having  heard and considered  the representations of all the   parties (and their witnesses) and  having considered all documents submitted to us, we hereby  decide as follows;

That the  boundaries  planted  by the late Wanga  Sieunda  between his three wives  be removed.

The six  next of kin of the late Wanga Sieunda (Silverster Odhiambo, Jackton Okello Wanga, widow – Rosebella Bwire, Charles Odhiambo, James Oduor and  Pius  Ouma Wanga) to process  the succession of land No. Marachi/Elukongo/1316 and share  equally.

Costs to be shared among plaintiff/objectors.’’

5.   That  Johnston Okello Wanga, Pius Ouma  Wanga, Sebella Anyongo Bwire, Charles Odhiambo Wanga and James Owuor, not being satisfied  with the  tribunal’s decision  filed  appeal No. 42 of 2011, before the Western  Province  Land Disputes  Appeals Committee, naming  Silverster  Odhiambo  Wanga as the objector (Respondent) (See  copy of  the proceedings in the record of appeal).

6.  The Appeals Committee heard the parties and passed the following verdict which is subject matter of this appeal;

‘’  1.         The appeal fails due to lack of new evidence.

2.         The Butula Tribunal court ruling stands as ordered.

3.         Costs to costs.

4.         The parties  to keep peace.’’

The verdict was signed and read on 17th October, 2011 by the following; Wilson Orunja as chairperson and four members namely, Rebecca Jendeka Evelia,  Sarah Nasimiyu Shallo, Jonathan Bomij and Salim  Esegeri Bilali.

CONCLUSION.

That the  composition of the Appeals Committee is as set out in section 9 of the Land Disputes Tribunal Act (Now repealed) which  requires a panel of  three members (see  subsection 2)  out of the six  members including  the chairperson appointed under subsection 1.  It is important  to set out subsection 2  of section 9 in details as hereunder;

‘’2.  For  the purpose of hearing appeals  from Tribunals in the province for  which the Committee is constituted  the  Committee shall sit in a panel of three members and in such places as may be determined  by the     Provincial Commissioner.’’

The copy of the proceedings and award of the Appeals Committee is signed by Chairman and four members which is beyond the three set under section 9 (2) of the Land Disputes Tribunal Act (Repealed). The Appellant has not  suggested that he suffered any prejudice by the Appeals Committee sitting in a panel of five instead of three.  The court is of the view that the panel must be consisted of an odd number like 3 or 5 out  of the  total membership of six.  There was no objection raised by any of the  parties against the membership of the panel and that ground fails.

That  section 3 (1) of the Land Disputes  Tribunal  Act (Repealed) limited  the jurisdiction of the tribunals  as follows;

‘’        3.  (1)  Subject to this Act, all cases of a Civil  nature involving a dispute as to-

the  division  of , or the determination of boundaries to land, including  land held in common;

a claim to occupy or work land; or

trespass  to land,

shall be heard and determined  by a Tribunal  established under section   4. ’’

When  testifying before  the Butula  Land Disputes  Tribunal, the Respondent  inter alia stated as follows;

‘’     I wish to state that  l live in my father’s land as a squatter.  I want  to be given my share. We were born six brothers;-…………my father gave land   to all  my brothers……..except  me because l was still young at the time   of giving the land.  I pray  that the Butula Land Dispute Tribunal  to urge  my brother to give me my share.’’

During  the hearing before the Appeals Committee, the  Respondent, among others,  stated;

‘’ 1. I am  a son to the late Wanga Sieunda who died  in 1987, living  six sons  and mothers  on the land under dispute No. Marachi/Elukongo/1316 and   the Succession Cause has not been done to date.

2.   I am  demanding to be given my share from my father’s land  which is  being used by only five brothers without me.

3.    My brothers  have shared portions of land living  me  without any land to cultivate and none was willing to listen to me.

4…………………………………………..’’

The evidence given by Johnstone Okello, Pius Ouma Wanga, Rosebella  Bwire, Charles  Odhiambo Wanga and James  Oduor before Butula Land Disputes  Tribunal shows  that they were not opposed to the Respondent’s getting  a portion of their father’s  land. Other than Johnstone Okello,  the other witnesses were of the view that the Respondent should  get a portion from the share given to his mother.   The witnesses restated similar positions during the hearing before the Appeals Committee.  It is however instructive to note that two  of the Appellants namely, Johnson Okello Wanga and Charles Odhiambo Wanga supported the Respondent’s claim and asked that the decision of Butula Land  Disputes  Tribunal  be adopted/upheld.

The foregoing shows clearly that what the Respondent wanted the tribunal to do was to assist him get a portion of land from the land that belonged to his deceased father, the late Wanga Sieunda, as his brothers had declined to give him a share.  This did not mean that the tribunal was being asked to take  onto itself the jurisdiction of a Succession  court under the  Law of Succession Act Chapter 160 of  the laws of Kenya. The  decision of the tribunal was alive to the fact that formal  and legal distribution would be through the process of succession when it directed that  the ‘’ six  next of kin………… to  process the succession of land No. Marachi/Elukongo/1316 and share equally.’’  The  Law of  Succession Act commenced  on 1st July, 1981 and  as the late Wanga Sieunda  is said to have  died in 1987, his  estate is subject to the processes prescribed under the Act. Section  40 of the said Act states;

‘’          40   9 (1)       where an interstate has married more than once under any system of law permitting polygamy, his personal and household   effects and the residue of the net intestate estate shall, in the  first instance, be divided among the houses according to the  number of children in each house but also adding any wife  surviving him as an additional unit to the number of children.

(2)       The distribution of the personal and household effects and the  residue of the not interstate estate within each house shall then   be in accordance with the rules set out in sections 35 to 38. ’’

The tribunal having been told that the heirs of the late Wanga Sieunda had not commenced succession cause for their  father’s estate, and the Respondent having sought  assistance  to be given a portion of land like his brothers, the tribunal had the power  to make  a provision for the Respondent. He needed a specified  portion of land to occupy and work pending the final distribution of the estate through a succession cause. The whole suit land  was occupied by the Respondent’s brothers, who included the Appellant,  and to accommodate the Respondent, the  existing  boundaries fixed by the late Wanga Sieunda would be affected.  The tribunal  decision was therefore  within its powers and  in accordance with section  3 (1)  (b)  of  the Land Disputes Tribunal Act (Repealed).

That for  reasons set out in (2) above, I find that as the Respondent’s  claim  before the tribunal was for a portion of his father’s land  to occupy and  work like his brothers.   That  considering the unchallenged  evidence  that he had not been  given  a share by his father before his death due to age,  I find  that the  tribunal was within  its powers  to issue the orders as it did on 9th February, 2009.  Needless to say, the Western Province Land Disputes Appeals Committee  decision to dismiss the appeal filed before it cannot therefore be faulted.

That the claim by the Respondent’s was against his brothers and not against the estate of Wanga Sieunda. The Respondent’s claim is for land to occupy and work like his brothers and not to be registered as the proprietor. The Respondent, like  the other brothers, have a common interest over the estate of the late Wanga Sieunda and  his claim was not  statutes barred.    The evidence the Respondent adduced  was that he was living on the suit property as a squatter and wanted a specified  portion just like his brothers and that was not rebutted.

That for reasons set out above, I see no merit in the appeal and the  following  orders are issued;

The appeal  is dismissed with costs.

The decision  of Western  Province Land disputes  Appeals Committee upholding the decision of Butula Land Dispute Tribunal decision of 9th February, 2009 is upheld.

That so as  to give effect to the orders of the Tribunal, the  parties  are directed to consult among  themselves and within 60 days  agree on the portion of land to be occupied by the Respondent. In case the parties are unable to agree among themselves, the  Area Chief  is mandated to summon the  parties for a hearing and thereafter  point out  the portion of land   to be occupied by the Respondent out of  the suit land Marachi/Elukongo/1316 awaiting the formal  distribution through  a succession cause in accordance with the Law of Succession Act.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …5TH ………..DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF…PRESENT IN PERSON…APPELLANT

PRESENT IN PERSON…RESPONDENT.

MR. FWAYA  FOR MR.  AKWALA  FOR APPELLANT.