Polcarp Nyongesa Nanzala v William Onyango Omondi [2015] KEHC 3003 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

HCCA. NO. 35 OF 2013.

POLCARP NYONGESA NANZALA …....….APPELLANT

VERSUS

WILLIAM ONYANGO OMONDI………… RESPONDENT.

(An appeal from  Butula Land Dispute Tribunal award of 4th day of April, 2011 adopted in Busia PMC Land Dispute No. 54 of 2011 on 21st day of July, 2011)

J U D G M E N T.

POLYCARP NYONGESA NANZALAhereinafter, referred to as the Appellant,  being dissatisfied with Butula Land Disputes Tribunal  award of 4th April, 2011  and adopted  in Busia PM.CC. Land  Case No. 54 of 2011 on 21st July, 2011 filed  this appeal through  the memorandum of appeal  dated 13th August, 2013  setting  out four grounds summarized  as follows;-

That he had filed an appeal before the Provincial Land Disputes  Appeal Committee  which ruled in his favour  on 18th  January, 2012 but by then the committee had been disbanded.

That the Land Disputes Tribunal acted beyond its powers by ordering the subdivision of registered land.

That the Land Disputes Tribunal award was contrary to section 6 of  the Land Control Act,  Cap 302 of Laws of Kenya as the suit land was agricultural and the requisite consent  had not been  obtained.

That the Land Dispute Tribunal failed to observe that the Respondent had bought land from a person who was not the registered owner of the suit land.

The Appellant named William Onyango Omondi as the Respondent.  Appellant filed written submissions dated 14th January, 2015 and on hearing date both parties made verbal submissions.

This being a first appeal, the court has an obligation to assess the evidence tendered afresh  and come to its own conclusion having regard to the fact that  it never  saw or heard the witnesses testify (see Seller –vs- Associated motor boat company ltd [1968]E.A 123]

BACKGROUND FACTS.

That the Respondent filed Butula  Land Disputes  Tribunal case No. 24 of 2010 claiming  one acre  of land  from Marachi/Elukhari/1387 which he had bought  from one Peter  Ngolo Owuor who was named the 1st  objector  in those proceedings. The Appellant  herein  was  named as the 2nd objector.

The Respondent  explained how  he and the 1st objector  entered  into an agreement under which  he was to get one acre for Kshs.30,000/= on the 18th February, 2001.   The  agreement  showed  that he paid Kshs.13,000/= leaving   a balance of Kshs.17,000/=  which he claimed  to have cleared later. The Respondent  took possession  of the one acre and have been using  it but the 1st objector  did not transfer the title to him. The Respondent had filed the claim after discovering  that the 1st objector  had transferred the title from his late brother’s names  to those of the 2nd objector who is his nephew.

The said  Peter Ngolo (1st objector )  confirmed  entering into  a sale agreement  with Respondent  in 2001 but said the Respondent  cleared  the purchase  price on 6th October, 2009 contrary  to his expectation.  The 2nd objector , who  is the Appellant  herein, confirmed  having seen  the Respondent  working on the land but neither him nor the 1st objector  told him about their relationship.

The evidence tendered before the tribunal clearly shows that Peter Ngolo  Owuor  (1st objector) was never  the registered  proprietor  of the suit land.  As  at the time of the sale agreement in 2001, the suit land was registered  in the names of the late Mathias  Muruka Owuor.   Later,vide Busia Succession Cause No. 119 of 2006, Polcarp Nyongesa  Nanzala, the Appellant herein  was appointed  the administrator of  the estate of the late Mathias Muruka Owuor and the    grant  was confirmed  on 30th November, 2009 showing  that the suit land was to be distributed as follows:

Polycarp Nyongesa  Nanzala to get 4. 94 acres.

Ronald Ochieng Ong’ang’a to get a plot  of 100 feet  by 50 feet.

There was no provision made for the one acre  the Respondent  bought from Peter Ngolo Owuor under the 2001 agreement and whose  purchase price  the Respondent cleared in 2009.  There is also nothing  to suggest that the Respondent, or Peter Ngolo Owuor, had lodged any objection proceedings in the said succession  cause filed by the Appellant  under which the estate  of Mathias  Muruka  Owuor  was distributed.

CONCLUSION.

That  flowing from the finding above, the said Peter Ngolo  Owuor  had no capacity to enter into any sale  agreement over the suit land as he never had title to the land.  It is also  clear  that the Appellant  was never a party  to the sale agreement between  Peter Ngolo  Owuor and the Respondent and there was no legal basis for the tribunal to order  him to transfer  an acre of land  he inherited from the late Mathias to the Respondent.

That the power of the Tribunal  was as limited under  section 3 (1) of the Land Disputes  Tribunal Act (Now repealed under section 31 of Environment  and Land Court Act, 2011).  The power  of the tribunal did not include determining  suits for breaches and  enforcement of contracts  for sale of registered  land.  The tribunal’s  power did not  including  conferring title to registered  land as their  award in this case attempted to do.  The    tribunal order of 4th April, 2011  and adopted in  Busia SRM C. Land  case No. 54  of 2011 on 21st  July, 2011 was therefore  ultra vives the powers  granted  by the statute and  hence null and void.

That the Appellant had correctly filed an appeal before the Provincial Land Disputes Appeals Committee who allowed it on 18th January, 2012  but by that date the tribunal had ceased to exist  following  the  repeal of the statute  establishing  it by Section 31 of the Environment and Land Court Act, 2011. The appeal committee decision though correct to the extent that it had set aside the tribunal’s award, was a nullity.

That noting  that there was confusion on the fate of the matters  pending before the Tribunals  and appeals Committees in the transition period, and in view of the provision of Article 159  of the Constitution  2010,  the court allowed  the Appellant to file the record of Appeal on 22nd July, 2013. This  was to enable  the court to do substantial justice in the circumstances of this case  instead of over emphasizing  on technicalities.  No party  was prejudiced by this direction.

That having  heard  both the Appellant and the Respondent, and on analyzing the evidence  tendered before Butula  Land Disputes  Tribunal, the court finds that the tribunal did not have jurisdiction to entertain the claim based on contract for sale of registered land.  Their  order was therefore  ultra vives their powers and hence a nullity.  The appeal  is therefore meritorious and is allowed and the following orders issued:

The appeal  allowed.

The decision of Butula  Land Disputes  Tribunal  of 4th April, 2011 and adopted  in Busia SRM.C Land  case  No. 54 of 2011  on 21st  July, 2011  concerning Marachi/Elukhari/1387 is hereby set aside.

The Respondent  to pay the Appellant  costs of this appeal and that before Butula land Disputes  Tribunal.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 4TH  DAY OF MARCH 2015.

IN THE PRESENCE OF ;…………………………….APPELLANT

…………………………….. RESPONDENT

JUDGE.